THE LEGAL TRANSPLANT AND THE BUILDING

OF THE ROMANIAN LEGAL IDENTITY IN THE SECOND HALF

OF THE 19TH CENTURY AND
THE BEGINNING OF THE 20TH CENTURY

Manuel GUTAN

When a people is leaving its national [legal] institutions and replace them with
foreign ones, it destroys its roots of life C.G. Dissescu 1

Abstract

This paper aims to capture the intellectual effervescence trying to answer the delicate
need to build a Romanian legal identity in the modern Romanian nation-state.
Consequently, I m addressing the concept of legal identity in terms of subjective /
internal [legal] identity, i.e. how the Romanian intellectual elite of the 19th century
and the beginning of the 20th century understood the Romanian legal identity.
Accordingly, I m interested neither in assessing the objective content of it nor in
capturing a general subjective understanding of it, including the perspectives
belonging to all social actors in Romania. At the same time, having an overall
approach of the Romanian elite s subjective perception about the Romanian national
identity, I m not interested in drawing an exhaustive picture of the diverse intellectual
approaches to the problem of legal identity in Romania. In this paper I m interested
only in the Romanian intellectual elite s ideas about how to build a national legal
identity while undertaking legal modernization through legal transplants. Moreover,
from this pool of ideas I shall focus especially on those intellectual strategies aiming to
confer the transplanted law a Romanian identity through a special adaptation by re-
creation.

Keywords: legal transplant, legal imitation, legal identity, legal passivity, adaptation
by recreation

 Professor of Romanian Legal History and Comparative Law, PhD, Lucian Blaga University of
Sibiu.
1 Constantin G. Dissescu, M. A. Dumitrescu, Istoria și principiile dreptului public român, vol. I

Bucure;ti Institutul de Arte Grafice ”Carol Gobl”, , p. .

Résumé

Cet article vise à capturer l effervescence intellectuelle qui a essayé de répondre au

besoin délicat de bâtir une identité juridique roumaine dans l Etat roumain moderne.
Par conséquent, je traiterai le concept d identité juridique du point de vue de l identité
subjective/interne i.e. comment l élite intellectuelle roumaine du XIXème siècle et du
début du XXème siècle avait compris l identité juridique roumaine. Je ne suis pas
intéressé d en évaluer le contenu objectif et non plus de capturer une compréhension
subjective générale, y compris les perspectives de tous les acteurs sociaux en
Roumanie. En même temps, dans une approche globale de la perception de l élite
roumaine sur l identité nationale, je ne suis pas intéressé de donner une image
exhaustive des diverses approches intellectuelles du problème de l identité juridique en
Roumanie. Dans cet article, je suis seulement intéressé des idées de l élite intellectuelle
roumaine sur la manière dans laquelle une identité juridique pourrait être construite,
simultanément avec une modernisation juridique par des transplants juridiques. En
outre, je vais souligner surtout les stratégies intellectuelles ayant pour but de conférer
au droit transplanté une identité roumaine par une adaptation spéciale par re-création.

Mots-clés: transplant juridique, imitation juridique, identité juridique, passivité

juridique, adaptation par re-création

There is nowadays, in the Western comparative legal scholarship, a relatively

poor knowledge and, sometimes, a misconception about the building and
particular dynamic of the Romanian legal system. Being regularly cornered as
a traditional importer of legal solutions from the Western-European legal
traditions, the Romanian legal system is mentioned only by those
comparatists still interested to map out the world s legal traditions before or
after the installation of the Eastern-European communist regimes2 or to
explore the French legal exceptionalism.3 This is why, as regards the
Romanian pre-communist law, the reader can usually find out that it was
heavily influenced by French Law and it was a part of the French legal
tradition s legacy. Even so, the Romanian law is worthy to be mentioned only

2 See Raymond Legeais, Grandes systèmes du droit contemporaines. Approche comparative (Paris:
Litec, 2004), p. 159.
3 See Sylvain Soleil, Le modele juridique français dans le monde – un ambition, une expansion (XVIe-

XIXe siecle) (Paris: IRJS editions, 2014).

as a more or less faithful receptor of the Napoleonic Civil Code of 1804.4 No
further inquiries about the development of the transplanted legal institutions
into Romanian society and its (legal) culture are endeavoured: the Romanian
legal modernization seems to be a classic case of legal development under
external political pressures or a self-evident case of an underdeveloped nation
surrendering its process of legal change to the French legal prestige. The
relatively chaotic character of its development seems to be the ultimate value
judgement when speaking about the Romanian law of the 19th century.5
Considering its Christian and Roman law heritage (via the Byzantine one), its
cultural compatibility with the cultures of the Western Europe, the Romanian
law raised no particular scientific challenge to the scholars of legal transplants.
Comparing it with the exotic cases of Turkey, India and Japan, where the clash
of Occidental-Christian, Islamic, Hindu and traditional Japanese cultures
have had more scientific sex-appeal , the Romanian case seems to be only a
common place of legal transplantation with peripheral impact upon the
theory and methodology of comparative law.

This Western approach is far from capturing the complexity of the legal
modernisation process in pre-communist Romanian nation-state. No doubt,
the Romanian modern legal system has been built through massive legal
transplants from the Western-European legal models, mainly French and
Belgian, undertaken at mid-19th century. However, the Romanian process of
legal modernization was far from being as smooth and effective as some
would be tempted to think and it was not ended in the full westernisation of
the Romanian law and society. We cannot talk about a successful passage
from the periphery to the centre, from the backwardness to civilization, from
the feudality to modernity. The legal institutional architecture has
dramatically changed but the Romanian society manifested resistance and the
legal transplants have been often compromised by a Romanian (legal) culture

4 See Antonio Gambaro, Rodolfo Sacco, Louis Vogel, Le droit de l Occident et d ailleurs (Paris:
LGDJ, 2011), p. 321; Gilles Cuniberti, Grandes systemes de droit contemporains (Paris: LGDJ, 2007);
Michele Graziadei, Transplants and Receptions, in Mathis Reimann, Reinhard Zimmermann
(eds.), The Oxford Handbook of Comparative Law (Oxford, Oxford University Press, 2008), p.
449.
5 Legeais, op. cit., supra, note . To be fair, I should mention that Sylvain Soleil s above mentioned

work is trying to deal with the effective impact of the French legal model inside the Romanian
legal system and society even if its perspective is blurred by the poor Romanian scholarship in
foreign languages and the methodological perspective of the author.
unsuitable for real change. This does not seem to be and it is not, for sure, a
spectacular development, as long as the tension between the legal transplants
and the irritated domestic (legal) cultures naturally occurred whenever the
process of legal change through legal transplantation was involved.
Nevertheless, the Romanian legal modernization through massive legal
transplantation could be a special case if someone would consider the huge
amount of ideas developed by the Romanian intellectual elites with regards
the transplant s causes, sources, modalities, methods and effects. The debate
was launched in the second half of the 19th century as a theorization about the
forms without substance in the Romanian culture and I have treated it
elsewhere as a true Romanian epistemology of the legal transplant.6 Thus, the
theoretical analysis of the meeting between the transplanted legal institutions
(the forms) and the Romanian (legal) culture (the substance) offers more
rewarding intellectual insights in the Romanian process of legal
modernization than the observation of the effective legal life of the Romanian
society. Moreover, this entire debate had a particular relevance to the problem
of the national legal identity. This connection was inevitable since the process
of (legal) modernization in the Romanian society and nation-state was
paralleled by a very effervescent attempt to build a national and national-legal
identities. Following, besides a general debate with regard the role played by
the legal transplant in the legal life of the Romanian society, a distinct but not
isolated debate arose with regard to the need to build a Romanian legal
identity. Analysing it could increase our understanding as regards the process
of the legal modernization in the pre-communist Romanian state and society
and surprise those considering the process of legal transplantation as a mere
transformation of the Romanian legal culture into a satellite of the French one.
It proves, above all, that the need for (legal) identity may go, in certain
circumstances, beyond any need for legal effectiveness.

6See Manuel Gutan, Comparative Law in Romania: History, Present and Perspectives, in (2010) 1
Romanian Journal of Comparative Law, pp. 9-70; Manuel Gutan, The French Legal Model in Modern
Romania. An Ambition, a Rejection. Comments on Sylvain Soleil s Le modèle juridique français dans le
monde. Une ambition, une expansion (XVIe-XIXe siècle , in (2015) 6 Romanian Journal of Comparative
Law, pp. 120-141; Manuel Gutan, Legal Transplant as Socio-Cultural Engineering in Modern
Romania, in M. Stolleis, G. Bender, J. Kirov (eds.), Konflikt und Koexistenz. Die
Rechtsordnungen Sudosteuropas im 19. Und 20 Jahrhundert. Band I: Rumanien, Bulgarien,
Griechenland (Frankfurt am Main: Vittorio Klostermann, 2015), pp. 481-530.
Before entering the concrete debate about the need to build a Romanian legal
identity in the context of the massive legal transplants meant to modernize the
Romanian legal system and society, we should understand the intimate link
between the Romanian national identity, Romanian legal identity and the
modernization through legal transplants.

1. National Identity, National Legal Identity and the Modernization

through Legal Transplants

The national self-awareness of the Romanian people increased gradually, at the

end of the 18th century and all over the 19th century, as a cohesive psychological
cement meant to unify the Romanians spread out on the territory of the
neighbouring empires (Russian, Austrian) with the Romanians inhabiting the
Romanian Principalities situated (until 1878) under the Ottoman sovereignty.
The idea of unity was both the incentive and the end of the Romanian national
resurrection. The unity of the language, religion, traditions and ethnical origin
represented sufficient arguments in favour of a common historical destiny, in
the same geographical space and inside the boundaries of a desired common
and independent nation-state. Like in similar cases developed in the same
period and region, the Romanian nation was born (at least ideologically) before
the Romanian nation-state with the mission to gain its political self-
determination.

In this context, the Romanian nationalism was profoundly ethnocentric and

the Romanian national identity was built around the Romanian ethnic
community. This did not mean to simply acknowledge the primordial data of
the Romanian people or to irrationally assume its objective (ascriptive)
peculiarities. Consequently, the Romanian national identity was not a process
of data registering but an intellectual effort to construct myths and symbols
related to specific national issues:7 origin (Roman-Latin, Dacians or a mix of
them), continuity on the national territory, religion (Orthodox Christians or
just Christians) and spirituality. The central role played by the Romanian
intellectual and political elites in constructing the national identity was self-
evident and, sometime, counterproductive as long as competing national

7 I could not less agree with David Brown s idea that in the building of the modern nationalism
the primordialist and constructivist approach are, to a certain degree, intermingled. See
Contemporary Nationalism. Civic, ethno-cultural and multicultural politics New York
Routledge, , pp. et seq.
mythologies have succeeded to blur the collective perceptions about the
essence of the national self.

The Romanian individual was inevitably lost in this process of building a

collective national identity. The birth of the Romanian ethnocentric
nationalism was primarily linked to the faith of the Romanian national
community facing its suppressors and detractors (Ottomans, Russians,
Austrians and Hungarians). Despite a certain interest in the civic
constitutionalism at the mid-19th century, the Romanian citizen was usually
absent in the political debates of the period. At its turn, the Romanian ethnic
individual was present only as long as it was capable to manifest commitment
to national community and to be subject to the patriotic education. Spiritual
and moral (meta-juridical) criteria of group appurtenance have been
developed in time the good Romanian theory , ending, in the interwar
period, with official attempts to purify the Romanian race through eugenics.
This kind of ethnic nationalism was inevitably authoritarian and illiberal,
naturally garnished with xenophobia, chauvinism and antisemitism.

Nevertheless, this development should be understood in its proper historical,

social, economic and cultural context. Having a deep insight of the Romanian
national self, trying to capture and conceptualize it and building a national
identity were juxtaposed to a stringent need to modernize the Romanian state
and society. Dramatically, the self-awareness of the Romanian nation implied,
from the very beginning, a considerable complex of inferiority as regards the
historical backwardness of the Romanian society. This is why, the birth of the
Romanian nation and nation-state was not (at the beginning, at least) a process
of self-insulation but rather one of openness, cultural curiosity and eagerness
to acquire the benefits of the Western Europe modernized societies. The
Romanian nation and nation-state should have had, at the same time, their
own identity and the modernity of the Western Europe. This goal could have
been achieved threefold: firstly, by inducing a considerable swift in the core
Romanian national identity, getting it closer to the Western-European social
models; secondly, by preserving the core Romanian national identity and
intermingling it with the Western-Europe modernity in an original process of
evolution and adaptation; thirdly, by preserving the Romanian national
identity and promoting only a formal, procedural modernization. The saga of
Romanian national identity has experienced all of them, either as a tendency
or as an achievement.
This apparent self-contradicting evolution witnesses the inevitable
construction of the Romanian national identity by the Romanian elites in the
presence of intense external cultural pressures and influences. Two cultural
influences coming from the Western Europe could be mentioned here: the
French one and the German one. The French influence was crucial for the
modernization of the Romanian society in numerous dimensions, starting
with cuisine and ending with the legislation. It strongly dominated the first
six decades of the 19th century and succeeded to produce a certain degree of
acculturation among the old Romanian aristocracy and the developing
bourgeoisie. Despite its ambitious aim to profoundly change the Romanian
society by some top-to-bottom social engineering, the lower layers of the
Romanian society remained outside this phenomenon. The elite s lack of
interest in the effective social modernization, its incapacity to develop proper
mechanisms of social change, its belief in some magical change produced
overnight by the transplanted institutions gave to the process of
modernization an elitist touch. This explains why the Romanian elite was
not only the vector of modernization but also its main beneficiary.
Modernization through institutional and cultural transplants was massive but
its achievement was far from producing the predicted change in the
Romanian society. This is why this process only partially and superficially
marked the Romanian national identity.

The resistance to modernization was also caused by the increasing influence

of the German romanticism, especially one of the Herderian thinking. Having
its roots in the period of 1848 Romanian revolutions, it decisively
underpinned the Romanian ethnocentric nationalism and ideologically
backed the Romanian national identity in the effort to counterbalance the
perils of unwise modernization. The clear synonymy between the concept of
nation and the concepts of neam , etnie ethnia , popor people ,
naționalitate nationality 8 in the Romanian political and legal discourses let
no room for misunderstandings with regard the ideological background of
the Romanian national identity. The absorption of the Herderian Volk (i.e. the
ethnic being) within the Romanian understanding of the nation reinforced the
need to develop a collective identity grounded both on the objective
(primordial) determinations of the Romanian nation (e.g. the language) and

8 Victor Neumann, Neam și popor: noțiunile etnocentrismului românesc, in V. Neumann, A. Heinen

eds. , Istoria României prin concepte Ia;i Polirom, , p. .
on its constructed romantic myths9 and oppose them to the foreign others and
their specific ethno-cultural identity. As a consequence, the process of
modernization and the important mass of institutions which were
transplanted from the foreign cultural and legal models urged the Romanians
to understand themselves, to discover their national character and to protect
it against any serious external threat. Admittedly, the collectivist ethnocentric
nationalism has been more interested in refining a national identity.10

Looking deeper into the Romanian self, an intense intellectual refinement

placed the Romanian village and the Romanian peasant at the heart of the
Romanian national identity, defending the purity of the Romanian way of life
against any internal cultural corruption and external intrusions. As a
consequence, the Romanian (rural) traditions have gradually become the
cornerstone of any conservative attempt to architecture and preserve the
national identity. To the Romanian romanticists, who were praising the past
and were promoting a cult of national antiquity, ancestral traditions and
simple behaviour of the Romanian peasants, the Romanian folklore was the
very essence of the Romanian national identity.11 Following this line of
thinking, a wide range of nationalist doctrines, e.g., poporanism, sămănătorism,
ortodoxism, gândirism, legionarism, have reified, at the end of 19th century and
the first decades of the 20th century, the Romanian peasant and gradually
rejected any cultural interference from abroad. Besides the Romanian
language, the Christian Orthodoxy, the agrarian economy, the pastoral life
and its related folklore, the rural cultural traditions and clothing and the
Romanian peasants moral behaviour have become national assets worthy to
protect.

The effervescence of the ethnocentric approach to the Romanian national

identity did not eliminate the need of modernization through institutional
(mainly) and cultural (subsidiary) transplants from the Western-European
models. However, after the massive and enthusiastic transplants undertaken
at mid-19th century, it was circumstantiated to clearer limits and specific goals.

9 Victor Neumann, Conceptually Mystified: East-Central Europe Torn Between Ethnicism and
Recognition of Multiple Identities Bucure;ti Editura Enciclopedică, , p. et seq.
10 Liah Greenfield, Nationalism. Five Roads to Modernity (Cambridge/Massachusetts,

London/England: Harvard University Press, 1993), p. 8.

11 Balazs Trencsenyi, Conceptualizarea caracterului național în tradiția intelectuală românească, în V.

Neumann, A. Heinen (eds.), op. cit, supra, note 1, pp. 344-345.

Following, a clear threshold of modernization was gradually installed in this
context: the modernization was acceptable only as long as it did not put in
danger the national identity (character). It was clear to many enthusiastic
proponents of modernization through transplantation that the core elements
of the national identity cannot be threatened. Having sometime a diffuse
content and being some other time associated with the tradition, the national
identity has become the turning point of all social change. Different
intellectual trends, coming from diverse ideological affiliations, e.g.
organicism, Spencerian evolutionism, Völkerpsychologie, cultural synchronism,
all have emphasized the necessity of modernization through transplantation
with the condition to respect the Romanian way towards modernity, the
Romanian inner resources and the Romanian positive national character.12
This balance did not miss dramatic accents, especially in the second half of the
19th century. While the modernization was on its way, the Romanian
educational system was manifesting the syndrome of the sieged nation.
Against the idea of opened society, which should have been transplanted
along with the political liberalism, the official dogmatism was preaching
about the Jews as enemies capable to trigger the internal factors of the
Romanian apocalypse the break of the Orthodox spirituality, the break of
ethnical purity and the alienation of the Romanian historical homeland.13 As
far as xenophobia, chauvinism and antisemitism have succeeded to grow up
amidst the Romanian society, at the beginning of the 20th century, the
modernization through transplantation has been easy to be overridden in
favour of the purified Romanian national identity.

As a part of the Romanian national identity, a Romanian legal identity had to

be built and preserved. Conceptualized, sometime, as legal culture , i.e. the

12 It is important to remark that the national character and the necessity to build the Romanian
national identity around it were under heavy dispute at the beginning of the 20th century. Some
Romanian pioneers of Völkerpsychologie were very eager to emphasize numerous (and
historically rooted) negative elements of the Romanian national character that would transform
the modernization through full Europeanization not only in a possibility but in a stringent
necessity. From this perspective, the Romanian national identity is not something to negotiate
under the European pressure but something to be completely changed under the benefice of the
Western-European influence. See Constantin Schifirneț, Identitatea românească în contextul
modernității tendențiale, (2009) XX Revista română de sociologie, pp. 472 et seq.
13 Mihai Stelian Rusu, Memoria națională românească. Facerea și prefacerile discursive ale trecutului

național Ia;i Institutul european, , p. .

way Romanians are understanding, expressing and practising the law, the
legal identity have had, ontological and axiological (normative) functions:

The legal culture is one of the shapes taken by the national culture that is shading
a true light over the superior qualities of a nation, necessary to establish order,
social harmony and pursuit of justice.14

Theoretically, it was out of the question to build a Romanian national identity

on a completely foreign legal échafaudage. This is why all above mentioned
balance between modernization through transplantation and preservation of
the national identity inevitably concerned also the process of legal change.
However some particularities made of Romanian legal identity a distinct case.

At mid-19th century, it was perfectly clear to many members of the Romanian

political and legal elites the difficulty to build a nation-state and a new
political order, to eliminate the social and economic remains of the medieval
period by preserving the old Romanian legal customs. To have a modern
national constitution and a modern codified legal system was inevitably
present in almost any Romanian blueprint of legal, economic, political and
social change in the 19th century. Consequently, for decades (1830s-1860s), the
massive transplantation of legal ideas, concepts, norms or codes, especially
form the French and Belgian legal systems, represented a normal practice,
without too much noise about the necessity to promote a Romanian legal
identity.

However, both at the end of 1860s, when the first Romanian modern
Constitution was made (1866), and during the 1870s, when the European
powers obliged Romanian to amend its Constitution in order to have its
independence recognised (1878-1879), the increasing ethnocentric nationalism
started to tame the enthusiasm of modernization through transplantation,
question its opportunity and evaluate its impact with regard the Romanian
legal identity. Already at 1866, the massive liberal architecture borrowed from
the Belgian constitutionalism was transformed in an institutional structure
meant to sustain the ethnocentric ethos of the constitution and the national
identity of the Romanian people. Overall, the main subjects of the Constituent
Assembly, e.g. the place of the Orthodox Church and the Christian Orthodoxy
in the nation-state, the equation of the Romanian citizen with the Romanian

14Andrei Rădulescu, Cultura juridică românească , în Pagini din istoria dreptului românesc
Bucure;ti Editura Academiei RSR, , p. .
ethnic, witnessed the need to equate the Romanian national identity with the
Romanian constitutional identity. Again, at 1878, the expressivist function of
the Constitution was crystal clear with the occasion of the constitutional
amendment solicited by the European powers gathered in Berlin. The
amendment was related with the Article 7 of the Romanian Constitution
which, in its 1866 version, was denying the Romanian citizenship to the non-
Christian residents. The provision was undoubtedly aimed against the
growing Jewish community in the country, community that the European
powers were eager to protect by facilitating its access to political rights.
Evaluating it as an act of constitutional imperialism, the Romanian political
elite answered the European demand with a very stormy debate about the
preservation of the ethnical core of the Romanian nation.

This inquiry brought to attention the necessity to give the Romanian citizen a
definition with profound identitarian relevance. As expected, the Romanian
citizen was not defined as an individual entity endowed with free-will,
enjoying constitutional liberties and freedoms, but as a part of an ethnic
community, expected to meet particular traits. Following, the whole
parliamentary debate occurring in 1878-1879 contributed, in terms of D.
Muller, to build a code of the nation which defined the Romanian nation […]
by using ethnic, moral and civilizational categories.15 The moral dimension of
the Romanian nation has been cornered both in the parliamentary and public
educational discourses related to the philosophy of the good Romanian .
Besides the older moral and spiritual coordinate of the good Christian , the
concept of good Romanian has gradually encapsulated the coordinate of the
good patriot , defined in terms of attachment and responsibility towards the
national community and the nation-state.16 As long as the Jews was not
capable to meet the moral coordinates of the good Romanian, they could have
not and should have not received the Romanian citizenship. The revision of
the Article 7 finally gave expression to an ontological, ethnic, moral and
juridical delineation of the Romanian self against the ethnic alterity. At its
turn, the above mentioned cod of the nation generically become an
identitarian filter of the Romanian citizenship and an ideological weapon

15 Dietmar M(ller, Cetățenie și națiune 1878- . Evreii ca alteritate în dezbaterea cu privire la

articolul din constituție, dans V. Achim, V. Achim coordonatori , Minoritățile etnice în România
în secolul al XIX-lea Bucure;ti Editura Academiei Române, , p. .
16 Liviu Neagoe, Cetățenie, națiune și etnicitate. O perspectivă comparată (Cluj-Napoca: Editura

Avalon, 2014), pp. 64 et seq.

against any ethnical group capable to endanger, from the inside or outside the
country, the Romanian ethnical core and the Romanian nation-state.

The tendency to equate the Romanian constitutional identity with the

Romanian national identity gradually raised, at the end of the 19th century, a
wave of dissatisfaction against the foreignness of the constitutional
institutional architecture massively borrowed from the Belgian Constitution
of 1831. Besides, more and more public voices coming from the intellectual
and political elites started to condemn the malfunction of the entire Romanian
legal system and questioned its non-Romanian character. The effectiveness of
the Romanian law has been related to its Romanian character, consequently
its transplanted origin was cornered as the source of all evil in the Romanian
society. In this context, the need to have a functional legal system was,
inevitably, paralleled by a need to have a legal system mirroring the
Romanian character. Strong debates with regards the Romanian legal identity
were at stake until late 1930s, combining strategies to enact a Romanian origin
law with different strategies to Romanian-ise the already transplanted law.
Both were very difficult to perform tasks: as long as the Romanian legal
culture have had rather poor resources to underpin the legal modernizations,
the Romanian legal system seemed to be perpetually condemned to
transplant; in the same time, what exactly could have been done with the
already transplanted law than to, eventually, abrogate it and undertake more
inspired legal transplants?!

This paper aims to capture the intellectual effervescence trying to answer the
delicate need to build a Romanian legal identity in the modern Romanian
nation-state. Consequently, I m addressing the concept of legal identity in
terms of subjective / internal [legal] identity, i.e. how the Romanian
intellectual elite of the 19th century and the beginning of the 20th century
understood the Romanian legal identity. Accordingly, I m interested neither
in assessing the objective content of it nor in capturing a general subjective
understanding of it, including the perspectives belonging to all social actors
in Romania. In the same time, having an overall approach of the Romanian
elite s subjective perception about the Romanian national identity, I m not
interested in making an exhaustive picture of the diverse intellectual
approaches to the problem of legal identity in Romania. In this paper I m
interested only in the Romanian intellectual elite s ideas about how to build a
national legal identity while undertaking legal modernization through legal
transplants. Moreover, from this pool of ideas I ll have a special focus on those
intellectual strategies aiming to confer to the transplanted law a Romanian
identity through a special adaptation by re-creation.

For this purpose, I shall dedicate a full section (2) to take a clear picture of
those diverse Romanian contexts that caused or underpinned the
transplantation of massive amounts of legal ideas, concepts, principles,
institutions and codes from different West-European legal models at mid-19th
century. A distinct section (3) will assess the effects, by emphasizing the huge
gap that popped-up between the Western-Europe faced but modernized
Romanian legal system and the Romanian society. Following (4-7), I shall
analyse those intellectual strategies aiming to build a Romanian identity
against the backdrop of the general debate about the causes, models, amounts,
mechanisms and aims of the legal transplantation process. The most
important and far-reaching strategy was those preaching the building of the
Romanian legal identity through the original recreation of the transplanted
legal institutions. I shall conclude (8) that the eager attempt to build a
Romanian legal identity made a possible dangerous swift from the interest in
the transplanted law s effectiveness and efficacy toward a pure theoretical
interest in the Romanian identity of the law that is lasting until the present
days. A theory of the originally adapted law was gradually developed and its
main consequences are, on the one side, a belief in Romanian society s
capacity to originally recreate any transplanted legal institutions and, on the
other side, the tendency to ignore the process of legal transplantation from the
scholarship of the Romanian legal history.

2. The Modernization of the Romanian Legal System in Particular

Geopolitical, Political, Economic, Cultural and Social Contexts

The need to understand the legal modernization in terms of national legal

identity must be addressed considering particular contexts: political,
geopolitical, economic, cultural and social. This picture aims at making clear
the circumstances of the legal modernization in Romania and the particular
background of the increasing interest in the Romanian national and legal
identities. The almost obsessive attraction of the Romanian elite for the idea
of Romanian legal identity (conceptualised as legal self, legal consciousness,
legal way of being) has been the result of a specific way the Romanian
intelligentsia understood the intimate link between the law and society on the
road towards modernization. We may say that the Romanian legal identity
was the product of a particular Romanian legal culture developed in the 19th
century and the beginning of the 20th century. It was not exclusive, being
challenged by a pro-European and anti-traditionalist (anti-identitarian)
understanding of legal modernization, but it was certainly dominating the
Romanian cultural scene.

Since the 14th century until the beginning of 1860s the Romanians have lived
in two separate states (Moldavia and Wallachia) situated at the east and south
of the Carpathian Mountains, a region where the geopolitical interest of the
ottoman, Russian and Austrian empires occurred and, frequently,
overlapped. At mid-19th century, Romania was an autonomous unitary (since
1862) nation-state under the Ottoman suzerainty (until 1878), while almost
half of the Romanians were leaving in Romanian majority provinces
(Transylvania, Bucovina and Bessarabia) under foreign sovereignty.

Not accidentally, the birth of the Romanian national consciousness and the
Romanian ethnocentric nationalism was dominated by the obsession for the
ethnic, political and territorial unity of the Romanians. The Romanian elite
was fighting, since the beginning of the 19th century, to build a unitary and
independent nation-state on the mythicized historical territory of the
Romanian people including all Romanian-speaking residents. Being
paralleled by the fight for independency, the fight for the nation-state was
given against the suzerain power (Ottoman Empire) and the protective power
(Russian Empire) with the purpose to show to the rest of the European powers
the capacity of the Romanians to build and leave in a well-organized, civilised
and self-sustaining nation-state. For this purpose, the Romanian politicians
were trying to prove the Romanian state s modernity and its capacity to stand
as an equal partner of the European civilised nation-states. One of the fastest
and best ways to reach these goals was, believed the Romanian political elite,
to build overnight a modern European legal system.17

Legal transplantation seemed to be a good idea at mid-19th century

considering also the important backwardness of the Romanian society on
multiple levels.18 The economy was peripheral agrarian dominated by rich
landowners, feudal work relationships neoiobăgia and primitive practices.
The Romanian external commerce was selling mainly feedstock, industry
barely existed, the bourgeoisie was almost inexistent and have had only a

17 See Manuel Gutan, The Challenges of the Romanian Constitutional Tradition. II. Between
Constitutional Transplant and (Failed) Cultural Engineering, in (2013) 26 Journal of Constitutional
History, pp. 2017 et seq.
18 See Keith Hitchins, România -1947 Bucure;ti Humanitas, , pp. et seq.; Daniel
Chirot, Schimbarea socială într-o societate periferică Bucure;ti Corint, .
limited role in society. The urban population was quite small (less then 20%)
and more than 80% of the population was predominantly illiterate (85%) poor
peasantry living in misery. Public services were underdeveloped and
inefficient and corruption made good home with the public office. In
Weberian terms, the Romanian nation-state was evaluating rather towards a
patrimonial state than a bureaucratic one.19 Overall, the Romanian legal
system was mainly based on codified medieval customs, Byzantine laws and
constitutional acts imposed by the European powers, i.e. the Organic
Regulations (1831-1832) and the Paris Convention (1858).

A strong complex of inferiority gradually developed among the Romanian

young aristocrats that graduated Western-European (mainly French) schools
and universities and a strong desire to change the Romanian society filled
their agenda. Any organic, gradual change seemed to be, at some moment, a
waste of time and a peril to the national(ist) movement. In this context, the
best solution was an attempt to produce massive and strong social
engineering through transplantation imitation up-to the bottom, from the
superior to inferior, from the elites to the mass, from the town to the village,
from the advanced peoples to those underdeveloped .20 As long as the law
was perceived as the ideal tool to model the Romanian society, the legal
transplant became the main door of the Western-European social and legal
models.

In a very short period of time, between 1830s and 1860s, Romania massively
transplanted French modern law (Commercial, Civil and Criminal Codes,
Civil and Criminal Procedure Codes, and the laws organizing a modern
administration), with small particular Belgian, Swiss and Italian influences.
The Paris Convention of 1858 and its amending Statute of 1864, which were
regulating the constitutional organization of the Romanian Principalities
(Romania, since 1862) were largely inspired by the French Constitution of
1852. According to A. Rădulescu, almost all new organization of the
[Romanian] state was following the French one .21 In 1866 Romania massively

19 Tom Gallagher, Furtul unei națiuni. România de la comunism încoace Bucure;ti Humanitas,
2005), p. 41.
20 Ion Bulei, Românii în secolele XIX-XX. Europenizarea Bucure;ti Editura Litera, ,
pp. 45-46.
21 Andrei Rădulescu, Influența franceză asupra dreptului românesc până la 4, in Pagini din istoria
dreptului românesc, op. cit., supra, note 14, p. 248.
transplanted the 1831 Belgian Constitution, establishing the constitutional
parliamentary monarchy.

3. The Consequences of the Massive Legal Transplant

After the massive process of legal transplantation, a modern, European-

shaped, Romanian legal system was indeed built overnight. This did not
necessarily mean that the important mass of foreign legal texts was entirely
and suddenly translated into Romanian. However, the urgency of legal
modernization determined a radical change of the whole Romanian legal
system in a very short period of time and this frequently implied an inevitable
translation text to text usually from French into Romanian) of the foreign
legal norms, besides a poor critical selection of the institutions and norms to
be transplanted. Following, the Romanian law dramatically changed (to use a
metaphor frequently mentioned at the end of 19th century) its clothes. Not only
was it endowed with spectacular modern legal principles, concepts,
institutions, procedures and codes but also the great majority of the old
Romanian legal customs were overlooked in the process of legal change.
Developing the medical metaphor of the legal transplant , we may say that
the Romanian political elite urgently transplanted foreign legal organs into
the sick body of the Romanian legal system with the hope they will perform
the same function they performed in their original legal bodies.
Unfortunately, during the surgical procedure, healthy tissue was replaced
along the sick one, opening questions with regard the opportunity and the
success of the entire procedure.

Paradoxically, the attempt to consolidate the young Romanian nation-state

through legal transplants has triggered rather a French-like and a Belgian-like
institutional legal identity. The Romanian legal system has been changed
considerably by the Romanian ruling elite, so, in a short period of time, all
Romanian legal actors and the Romanian people were acting in a foreign legal
environment. This is not to say that a deep and irreconcilable divide between
the imported foreign legal institutions and the (legal) culture of the entire
Romanian society has been installed. The ruling elite transplanted voluntarily
and made a conscious choice with regard the foreign legal models to be
transplanted. Some may say that this endeavour has not been fully critical and
the rationality of the process has been undermined by the unconditioned
prestige of the French and Belgian legal models. However, this was
witnessing rather a deep divide inside the Romanian legal culture, especially
inside the legal culture of the political and legal elites. Almost all of them were
aware of the necessity to modernize the Romanian society and its legal system
and many were ready to accept the legal transplantation as an inevitable tool
of modernization. But some of them have become members of the French (and
Belgian, in subsidiary) epistemological communities, sharing the same values,
principles and ideas with regard the law, accepting the same believes with
regard the exceptionality of the French law22 while many were started to seek
the Romanian character inside the national legal architecture. This divide will
stand as one of the main premises that triggered in the second half of the 19th
century the intellectual tension between the proponents of full
Europeanization and the proponents of the Romanian (legal) tradition and,
finally, ”the battle” for the Romanian legal identity.

Taking all these into consideration, it may be said that the process of legal
transplantation determined a considerable gap between the transplanted legal
institutions and the great part of Romanian society s legal culture. The huge
cultural and economic discrepancy between Romania and Western Europe
and the contrast between the new legislation and the old Romanian legal
customs were easily noticeable. Remarkable was the real shock resented by
the Romanian peasantry after the new Romanian Civil Code of 1864 has
changed the multisecular legal customs (partially codified until 1864) with
new legal institutions massively borrowed from the French Civil Code of
1804. Far from bearing the symbolic cultural weight of the French Civil Code,
the Romanian Civil Code has been manufactured in a relatively short period
of time (1862-1864) by a group of Romanian lawyers with legal degrees in
Paris, through direct translation from the French language into a heavily

22 Definitely, this was not a strange thing, considering the huge influence of the French culture

over the Romanian one since the beginning of the 19th century. More and more Romanian young
aristocrats and members of the growing bourgeoisie started to study in the French (especially
Paris) universities, many of them graduating the Faculty of Law. Almost all the members of the
Romanian political and legal elite that have conducted the modernisation of the Romanian legal
system under the rule of Prince Al. I. Cuza (1859-1866) were former students of the French
universities. It is also relevant that, until 1914, the great majority of the Romanian scholars
teaching in the Universities of Ia;i and Bucharest graduated in France. At the same time,
ministers out of 141 members of the governments between 1866 and 1916 graduated in France
or pursued their academic studies in French language. See Bulei, op. cit., supra, note 20, pp. 26 et
seq.; Lucian Boia, Sur la diffusion de la culture européenne en Roumanie XIXe siècle et début du XXe
siècle , in Modelé français et experiences de la modernisation. Roumanie, e-20e siècle

Bucureşti Institutul cultural român, , pp. et seq.

French-ised Romanian legal language.23 Inevitably, it was received as a
foreign legal corpus inaccessible to the large mass of illiterate Romanians.
Unlike the Romanian Constitution of 1866, massively borrowed from the
Belgian Constitution of 1831, that regulated political institutions and
fundamental rights foreign to the Romanian legal culture and inaccessible to
the majority of the Romanians, the new Civil Code touched the core of the
peasantry s legal world, the customs and legal institutions that they have
learned from their ancestors and that have endorsed their way of life. As T.
Maiorescu has remarked soon after,

What did they do to these people? They suddenly overthrown all institutional
shapes of our public life, all laws belonging to it and they have built a […]
manufacture of laws, which only in one year, from 1864 to 1865, has flooded us
with the Civil Code, Civil Procedure Code, Criminal Code, Criminal Procedure
Code and a sum of other laws. Everything has changed suddenly; it changed all
usual terms in our legislation; it made that nothing in this muddy legislation to be
no more understood by our people. Did our lower class take part in this situation?
No.24

Despite some timid publicity campaigns developed by the government, the

Civil Code has been received with puzzlement and amazement on the country
side,25 letting the Code ineffective for more than 40 years. It has remained at
the disposal of the ruling and political elite and has been identified in the
popular culture with the very lucrative activity of the Romanian attorneys, the
only ones considered capable to read and understand the transplanted legal
text. This fracture between the new and imported legal architecture, produced
by the political and legal elites, on the one side, and the old customary law
endorsed by the population has been perfectly capture by the metaphoric
dichotomy between the legal Romania and the real Romania .
Unexpectedly, the legal Romania did not mean the rule of law s Romania
or Romania as a land of the law s effectivity. Contrarily it meant a strange and
foreign legal Romania, belonging to the Romanian elites, where the new
codification and legislation represented only a formal and ineffective legal

23 Manuel Gutan, Le droit civil roumain entre recodification „nationale” et uniformisation européenne,
in (2008) no 1 Studia Universitatis Babes-Bolyai Jurisprudentia, pp. 171-189
24 Apud Constantin Schifirneț, Forme fără fond. Un brand românesc (Bucure;ti Comunicare.ro,

2007), p. 69.
25 Gutan, Legal Transplant as Socio-Cultural Engineering in Modern Romania, op. cit., supra, note 6,

pp. 510 et seq.

system. Conversely, the real Romania was the land of the authentic and
genuine Romanian law, of the old legal traditions accepted and effectively
applied by the Romanian people.

Public law made no exception. The principles and values of liberal

constitutionalism enshrined in the 1866 Constitution along with the
institutions and mechanisms of the dualist parliamentary regime had no
chance to be rooted in a Romanian political climate constantly dominated by
lack of a modern political culture, group interests and corruption. Democracy
became a mockery, for the parliamentary elections were largely manipulated
by the government, and liberalism stood only on paper, as long as the
peasantry had a very poor access to their liberties and freedoms. Moderate
authoritarian monarchy was the perfect answer for a society incapable to play
by the rules of political liberalism.26 At the same time, the legislation
organising, after French and Belgian models, the local public administration
remained largely ineffective in the rural world dominated by ignorance,
illiteracy, old feudal mentality, corruption and poorness.

Not only the new legislation let the Romanian society largely unchanged until
the beginning of the 20th century, considering, at least, the ambitious aims of
the legal modernization, but it also produced a considerable turmoil in the
Romanian society. A particular tension arose and developed between the two
Romania , having at stake the issues of legal efficacy and national legal
identity.

4. Intellectual Reactions against the (Legal) Institutional Transplants

A prominent intellectual reaction, among others, has been the outcome of this
evolution towards modernity: a very intense and complex debate about how
to build a Romanian legal identity. This was not a diffuse and unconscious
resistance of the Romanian (legal) culture, but a conscious, voluntary and
intensely conceptualized one. It was circumscribed, maybe, to one of the most
important theoretical debates on legal transplant and its effects that occurred
in Europe at the end of the 19th century and the beginning of the 20th century.
This is why, it should be understood as a result of a complex dialectic of legal

26See Manuel Gutan, The Challenges of the Romanian Constitutional Tradition. I. Between Ideological
Transplant and Institutional Metamorphoses, in (2013) 25 Journal of Constitutional History, pp. 223 et
seq.
change that become to constantly balance, in the Romanian (legal) culture,
legal modernity and legal tradition.

The works of important Romanian social actors particularly interested in the

process of modernization suffered by the Romanian society under the
inevitable influences coming from the Western Europe reveal the
extraordinary intellectual and ideological effervescence of that period.
Different theoretical perspectives (mainly philosophical, sociological or
ethno-psychological) have been developed post-factum, for explanatory and
normative purposes, with regard the failures and future steps towards
modernity to be followed by the Romanians. Their overall critical approach,
underpinned by the [German] romanticism, [English] organicism and
evolutionism, by traditionalism and autochthonism, has condemned the
falsity and inadequacy of the modernization process driven by a Romanian
elite educated in the Western Europe and eager to change overnight the
Romanian society. Against the urgent modernisation undertaken top-to-
bottom through massive cultural and institutional imports from the European
Western civilisations they have endorsed an organic one, undertaken bottom-
to-top through slower but more effective social change. Cultural and
institutional transplants were still accepted, since the modernisation meant, to
a certain degree, Europeanization, but they should have been critically done27
and necessarily linked to the local cultural and institutional particularities. At
stake was not only the burden to fill in the important gap between the centre
and periphery but also to do it for the Romanian nation and through the
Romanian nation. The Romanian nation was supposed to become European
but in its own (organic) way and by preserving its national identity. As T.
Maiorescu put it:

As soon as next to a people exists a higher culture, the latter necessarily influences
the former. Because one of the signs of a high culture is to give up the narrow circle
of the individual interests and, without losing the national element, to discover and to
formulate ideas for the whole mankind […] to be united in the cultural principles
is the necessary fate of every European people. The question is whether this could
be done as an equal partner or as a humble slave; whether it could do this by saving

27The critical cultural and institutional import was supposed to block massive and unnecessary
transfers from the Western European cultures both for the reason to encourage highly
qualitative imports
 and strengthening its national freedom or by bowing to the foreign power. This
question gets an answer from the energy of the intellectual and economic life of
the people […].28

This is why the whole philosophical and sociological theorization about

modernity has been strictly applied to the Romanian national boundaries and
the Romanian national history, spirit and traditions have become the
compulsory foundations of any endeavour towards modernization. In this
context, the foreign institutions should have not been massively and passively
imitated but rather critically imported if and when necessary in a Romanian
cultural climate capable to actively and positively adapt them. Thus, the
process of modernization would become a work of original creation having
the national culture and traditions (of the Romanian peasants) at its very
foundation and the cultural and institutional imports as its pillars . The act of
original (genuine) creation would not only qualitatively modernize the
Romanian nation but also would allow it to express its identity. As Theodor
Rosetti put it at 1874,

Only by making abstraction of the empty and senseless shells of our superficial
civilisation, only by returning to the original and resourceful spring of our country
side life, only by studying our customs and the language of our peasantry, the
educated classes of the Romanian society would understand themselves as a
distinguished element, as a free and necessary limb of the humanity. Only through
a thorough study of the Romanian people s nature they could give a new and
original shape to the imported general ideas.29

Proceeding otherwise would lead (as the reality finally proved) to strong
disturbances in the Romanian society and to the birth of a parallel formal /
false / unreal / delusive and fictive (M. Eminescu) / hypocrite (N. Iorga)
institutional architecture incapable to meet the true needs and finalities of
modernisation in the Romanian society.

This evolution has been critically evaluated by the theory of forms without
substance , develop in the nd half of the 19th century and the beginning of the

28Apud Schifirneț, op. cit, supra, note 24, p. 73.

29Theodor Rosetti, Despre direcțiunea progresului nostru, in I. Stanomir, L. Vlad, A fi conservator
Bucure;ti Editura Meridiane, , pp. -74.
20th century.30 In this theoretical context, the rationality of the process of
modernization, especially of the modernization undertaken through
transplants from abroad, has become the main explanatory variable. The
theoretical standard guaranteeing a substantial, successful and national-
driven modernization was the critical transplant, i.e. the transplantation of
cultural values and institutions only when and where necessary, from the
proper source and in the necessary amount. The lack of the critical approach
inevitably led to an irrational transplant and its main consequences: on the
one side, the failed modernization, i.e. the distortion, non-functioning or
malfunctioning of the imported institutions, on the other side, the wrack and
ruin of the Romanian national identity. As the conservative leader P.P. Carp
put it,

History shows us that those countries who did not know how to cure themselves
from this disease of reforms, that are succeeding so fast one after another, has been
cured by others but, in the same time, they lost their individuality, they have
disappeared as free nations.31

These consequences have been fully treated as perfectly predictable outcomes

in the existing Romanian social, economic and cultural circumstances, this is why
the irrational character of the transplantation process was less considered as a
deficiency of thinking and more as a mental disorder. Not accidentally, it was
labelled total mental aberration or blindness .32 This critique was meant to
emphasize both the gravity of the intellectual approach to modernization and
the gravity of its consequences.

As a part of the Romanian culture, the law has been inevitably captured in
this very seminal debate. It has received even more attention than other
Romanian cultural dimensions (e.g. the literature, education, theatre, clothing
etc.) since the law was not only the object of modernization but also the main
tool of modernization in the hands of the Romanian political elite. The legal
transplant was the most important way to modernize, top-to-bottom, the
Romanian state, the Romanian law and the Romanian society overall. This
explains why the important mass of critique has been frequently focused on

30 See Gutan, Legal Transplant as Socio-Cultural Engineering in Modern Romania, op. cit., supra, note
6, pp. 504 et seq.
31 Schifirneț, op. cit, supra, note 24, p. 128.

32 Titu Maiorescu, În contra direcției de astăzi în cultura română (1868), in Stanomir, Vlad, op. cit,

supra, note 29, pp. 42-43.

the insufficiencies and perils of the irrational legal transplants undertaken
especially during the 1830s-1860s. On the one side, the imported law was
analysed as an empty shall endangering, besides other empty shells, both the
process of modernization and the Romanian national identity. Admittedly,
the formal, fake or unreal imported legal principles and institutions have had
much more negative impact on the Romanian society since they were
expected to produce effective social change. Far from providing an impetus
for modernization, the legal transplant only built an important corpus of new
legal principles and institutions accessible to a small group of initiates
(regularly politicians and attorneys), completely foreign to the large illiterate
Romanian society and, therefore, very hard or impossible to be applied. In the
same time, by ignoring the Romanian spirit and legal traditions, the massive
legal transplants were blamed both for contributing to the ruin of the
Romanian national identity and for blocking the birth of a modern Romanian
legal identity. As C-tin G. Dissescu put it very well at 1903:

The doctrinal legislation that ignore the historical evolution, the national character
exists only on paper […] The new imposed law, far from being the expression of
the national consciousness and [its] needs is received with disgust and everybody
give their best to fraud it.33

On the other side, the process of legal transplantation has known itself an in-
depth critical analysis, taking into consideration a wide range of issues: the
causes, the actors, the models, the techniques, the quantity, the scope and the
effects. This analysis, developed over decades as a true Romanian
epistemology of the legal transplant,34 has offered complex responses with
regards the dysfunctional meeting between the Romanian society and the
imported legal institutions. But it was not an isolated intellectual endeavour.
The very intense debate with regard to the modernization of the Romanian
society has had a direct and compelling impact upon the problem of legal
modernization. Having the imported legal forms and the Romanian cultural
substance as the main categories, it has built a strong causality between the
process of (legal) modernization, the preserving of the national (cultural)
identity and the building of a modern legal identity. Consequently, there was
only little support to the idea of having the national identity strongly

33Dissescu, Dumitrescu, op. cit., supra, note 1, pp. 366-367.

34See Gutan, Legal Transplant as Socio-Cultural Engineering in Modern Romania, op. cit., supra, note
6, pp. 504 et seq.
remodelled under the influence of the imported legal institutions, with the
consequence of building a non-Romanian legal identity (see infra, section 6 C).
Conversely, a Romanian modern legal identity should have been built only
by preserving and promoting the national identity in the process of legal
transplantation. The failure to build a Romanian legal identity intimately
determined the failure of the Romanian process of legal modernization and,
subsequently, a failure of the Romanian modernization. By ignoring the
Romanian national spirit, cultural particularities and (legal) traditions, the
Romanian legislator succeeded only to provide a formal legal system filled in
with imported legal principles and institutions, which, due to their
foreignness, have been incapable to properly function in the Romanian society
and to produce effective change towards (legal) modernization.

Nevertheless, this critical approach to Romanian legal modernization should

not be understood only as a brainstorm meant to explain the failure or to
project the necessary parameters of legal modernization success in the
Romanian society. Besides being instrumentally encapsulated in this debate,
making it a precondition of a substantial and functional modernization, the
Romanian legal identity has been also approached as an end per se. Beyond
the problem of (legal) modernization, the topic of national legal identity
belonged to a pool of ideas that turned the Romanian national identity into
the crux of all developments that concerned the Romanian state and society.
The Romanian national legal identity would not only have preserved the
Romanian national spirit and culture but also it would have proved the
Romanian excellence and originality in law. Moreover, it would affirm the
presence of a powerful and respected nation. As Th. Rosetti put it again:

Until we shall not have a Romanian legislation, an organization of the state and
the local communities original and adapted to our needs, until we shall not have a
history, a language, a Romanian science, we shall not be a people but, at the best,
a geographical expression opened to daily changes, to the endless interference of
our neighbours.35

But these tasks were far from being very easy to perform.

35 Rosetti, op. cit., supra, note 29, p. 74.

5. Intellectual Challenges and Strategies towards the Romanian Legal
Identity

The main challenge to the building of the Romanian national legal identity
has been the necessity to appeal to important amounts of legal transplants
from the Western European legal models. The irrational legal transplants
undertaken at mid-19th century considerably hardened the endeavour: how
would it be possible to build a national legal identity after being compelled to
import a wide diversity of foreign legal principles and institutions?! After
many Romanian legal traditions and peculiarities have been more or less
reasonably ignored in the process of legal modernization, the Romanian legal
system has been inevitably dominated by the French and Belgian legal models
and it generally tended towards a French-like legal identity. In order to build
a Romanian national legal identity it was necessary to manage this reality
without renouncing to the legal transplants. Expelling the foreign legal
principles and institutions from the Romanian legislation was not an option.
Overall, it was needed an intellectual strategy capable to cope with the
necessity of modernizing the Romanian legal system by using massive legal
transplants and, in the same time, with the necessity of building a national
legal identity.

This kind of intellectual strategies has been developed in the frame of the
critical response to the legal modernization undertaken through legal
transplants given by the proponents of the forms without substance theory.
Conservative or not, traditionalists or not, many Romanian intellectuals have
been interested both in concrete social processes meant to Romanian-ise the
transplanted law and in dressing up the Romanian legal system to look as if
it was the full expression of the Romanian national identity. This is why these
approaches cannot be addressed, instrumentally, only in terms of successful
or failed legal transplant or in terms of mixed legal traditions. While dealing
with the Romanian legal identity, some Romanian intellectuals were not
directly interested in the well-functioning of the transplanted legal
institutions (at some point, not interested at all) and, definitely, was not
interested in how far the Romanian legal system is French or Belgian and how
far it is Romanian, or how far the outcome of the legal transplantation process
was, in terms of 5r(c(, a mixing-bowl , a salad plate or a legal pure .36 The

Esin 5r(c(, Law as Transposition, in (2002) 51 The International and Comparative Law Quarterly,
36

pp. 205-223.
intellectual strategies to build a Romanian national legal identity have
inevitably become reductionist, less interested in the origin and particular
functioning of the transplanted legal institutions and mainly focused on
Romanian society s capacity to creatively and originally deal with them.

6. Queries:

A bunch of core questions dominated the debate and the answers come from
different intellectual backgrounds (philosophical, sociological and juridical)
have balanced the idea that law must mirror its society against the idea that
the law should and could engineer the society. The final solution, as an
intellectual strategy to cope with the national legal identity while undertaking
legal transplants grew up dialectically from these opposite perspectives
towards the legal modernization in Romania.

A) Was the massive legal transplant absolutely necessary?

To Titu Maiorescu (1840-1917), a prominent Romanian philosopher and

sociologist of culture, writing under the influence of the English evolutionism
and German historism, the answer was clearly no (1868). In his opinion, the
Europeanization through massive legal transplants flattened out the
Romanian legal traditions, killed the Romanian cultural identity and created
a false national legal system. Accepting the inevitability of the legal
modernization through Europeanization, Maiorescu has denied any positive
effects in the then Romanian society to the legal transplantation as pure
imitation of the legal texts and institutions existing in the Western European
legal models. From the same evolutionist and organicist perspective, the poet
and philosopher Mihai Eminescu (1850-1889) has appreciated the inadequacy
of the monkey-like imitation (maimuțăreală) of the Western European (mainly
French) legal models. It has succeeded to provide only empty shells which, in
the absence of the Romanian legal traditions, of the Romanian people s
nature, of its instincts and inhabited propensities, of its genius, would have
led only to a brutal falsification of the Romanian people profile, to a
contradiction between these imported institutions and the Romanian spirit.37
According to Eminescu, the legal change is normal but it has to organically

37 Schifirneț, op. cit, supra, note 24, pp. 84 and 86.

mirror the social change like in all other monarchical countries of the Europe
where

[…] the Constitution and the laws keep the trace of the past every people has made
great progresses but made them organically, keeping that institutional benchmark
that proved to be good in the past, adapting itself on the other hand to the new
realities through new legislation.38

Instead of this organic legal development, the Romanians

[…] have imported [legal] institutions and ideas fitting the realities of the West but
unappropriated with a poor and unilateral in his preoccupations people.

Consequently,

[…] with empty shells instead of the substance, a nation cannot regenerate and
strengthen itself.39

The same perspective has developed the well-known Romanian historian

Nicolae Iorga (1871-1940). To him, the institutional (legal) transplants were
not inherently wrong, as long as they have met the necessities of the Romanian
society. However, any constitutional and legal change should give priority to
the Romanian organic change, to that Romanian (legal) substance and
originality developed over the centuries. In a pure Hegelian spirit he was
convinced that not the Constitution creates a society, but it is the
philosophical, the juridical expression of an entire society s development .40

To some Romanian intellectuals, convinced that the modernization of the

Romanian society could have not escaped to the Western European
acculturation, the answer was clearly yes. The process, explained from
different ideological perspectives, have had as its hard core the inevitable
modernization of the Romanian society through the direct, active and decisive
change of the Romanian substance (culture, policy, law, economy etc.) by the
transplanted foreign institutions. At the end of the 19th century, the socialist
C-tin Dobrogeanu-Gherea (1855-1920) accepted the massive legal transplants
from the Western European legal models as a part of the inevitable evolution
towards liberalism and capitalism of the Romanian society. Even if he blamed

38 Id., p. 96.
39 Ibid., pp. 86-87.
40 Ibid., p. 137.
the irrational, uncritical, legal transplants, Dobrogeanu-Gherea considered
the production of forms without substance (the legal state versus the real
state) as a normal step towards modernization.41 From the perspective of a
sociologist and philosopher of culture, Eugen Lovinescu (1881-1943)
answered also yes . To him it was obvious that the Romanian society could
not escape the synchronisation of civilisations, based on the law of imitation
(G. Tarde). Considering the remarkable backwardness of the Romanian
society, this law should imply a sudden and total (revolutionary) imitation of
the Western-European superior legal forms (institutions) by the Romanian
inferior legal system.42

To Garabet Ibrăileanu -1909) the answer should have been found out
rather on a middle ground. His answer was yes and no . Yes, because the
process of legal modernization (Europeanization) cannot be done without
legal imitation no, because the legal imitation must be undertaken with a
critical eye: only those legal institutions that fit the Romanian national
(ethnical) character must be imitated.43

This debate lead inevitably to a particular conceptual balance meant to

express the effects of the massive legal transplantation and its impact on the
national legal identity. Well-known and largely used in interwar period, the
concept of transplant was less popular before . Instead, the concept of
legal imitation was heavily used with a very clear semantic: the massive
transfer of Western-European (mainly French and Belgian) legal institutions,
undertaken in a more or less necessary monkey-like manner. Furthermore,
the concept of legal imitation was not balanced against the concept of legal
modernization but against the concept of legal passivity, meaning the
incapacity of the Romanian political elite to produce national law and, finally,
the denationalization of law or even the extinction of the nation. Having in the
background the above mentioned complex of inferiority, the concepts of legal
imitation and legal passivity captured the axiological and ontological
dimensions related to the national legal identity. The national legal identity
was meant not only to witness the historical existence of the Romanian nation

41 Ibid., pp. 107 et seq.

42 Eugen Lovinescu, Istoria civilizației române moderne Bucure;ti Editura Minerva, , pp.
302 et seq.
43 See Garabet Ibrăileanu, Spiritul critic în cultura română Ia;i Editura Junimea, .
but also its capacity to impose respect for Romanian national and legal
qualities.

B) How would it be possible to build a Romanian legal identity upon a

massive legal imitation?

At a certain point, everybody was convinced that the modernization of the

Romanian legal system and society, correlated with the building of a
Romanian legal identity, did not require to abolish all transplanted legal
legislation in favour of a Romanian-origin one. Even if the later solution
seemed to be ideal to some Romanian intellectuals, it was agreed that the
foreign-origin legislation should be kept and somehow successfully enforced.
Even the most fervent supporters of originalism and evolutionism, like T.
Maiorescu, accepted this approach at the time when their political party (e.g.
the Conservative one) took the government. However, this did not imply to
give up to the Romanian legal identity but only to change the parameters of
its construction. Thus, the main question was: how would it be possible to
build a Romanian legal identity upon a massive legal imitation? If legal
imitation meant legal passivity and, consequently, the loss of the national
legal identity, then the building of a national legal identity meant legal
creativity:

To Maiorescu, the solution seemed to be crystal-clear: by rejecting the

imitation and organically creating a modern Romanian national legal system.
Preaching the imperative to have a strong and intimate connection between
national culture and national law, Maiorescu saw its achievement in the
necessity to undertake a critical (rational and realistic) legal transplant
permeating the support of the transplanted legal institutions (the forms) by
the Romanian national culture (the substance). Facing the reality of the new
and foreign legal architecture, he saw the solution in the gradual
nationalisation of the legal transplant through gradual modernization of the
Romanian society and culture. Having no formative impact on the Romanian
substance, the imported legal forms should have been Romanian-ized in order
to become functional. It seemed to be difficult to a proponent of evolutionism
and organicism to accept the decisive role of the legal forms in shaping the
Romanian culture. Without excluding the necessity and possibility that the
imported [legal] institutions to change the Romanian substance, Eminescu
saw, at its turn, the solution in the nationalisation of the new legal
architecture by the evolving Romanian national culture.44 To Iorga also, the
process of adaptation was necessary in order to eliminate the important gap
between the legal forms and the Romanian culture but with the condition of
protecting the Romanian substance against any destructive impact of the
foreign legal institutions.

To some others, the building of a Romanian (legal) identity was not intimately
conditioned by the preservation of the Romanian old (legal) traditions. The
transformative impact of the (legal) imported institutions upon the Romanian
has been considered unavoidable and desirable. This did not mean that the
problem of the national (legal) identity has been ignored or treated with
superficiality. On the contrary, it has represented a constant concern. To
Dobrogeanu-Gherea, for example, it has not been built on the Romanian
national spirit but on the new institutional (legal) architecture transplanted
from the Western Europe. This time, the Romanian identity relied on the
Romanian society s capacity to acquire a new modern shape and make a clear
modern political difference in this part of Europe. As such, building a
Romanian (legal) identity through West European institutions was strictly
linked to the nation-state s independence. Thus, the modern Romanian
independent state has become the ideal environment to protect the Romanian
nation and the matrix of its national (legal) identity.45

To Lovinescu (1924), the monkey-like imitation, as the first step of the (legal)
synchronisation with the more advanced (legal) forms of civilisation should
be followed by a second step: the subsequent creation of an original modern
Romanian law through the adaptation of the imitated legal institutions to the
Romanian national character. This would be the best way to affirm a legal
identity. In Lovinescu s terms, to imitate is the most ordinary way to be
original .46 The ethnocentric legal identity is favoured, in Lovinescu s
perspective, by the unescapable passage from the imitated (legal) forms to the
inner elements of the Romanian character (substance). However, the
transformative impact of the imported legal forms on the Romanian ethnic
substance is not expected to be null. On the contrary, far from being a pure
adept of the organic evolution (from the substance to the forms), Lovinescu
accepts the transformative impact of the imitated (legal) institutions. Thus, the

44 Schifirneț, op. cit, supra, note 24, p. 102.

45 Id., p. 116.
46 Lovinescu, op. cit., supra, note 42, p. 306.
re-creative role of the original adaptation concerned not only the imitated
institutions but also the Romanian (legal) culture. This way, the Romanian
legal identity should be the outcome of an evolutive synthesis both at the level
of the (legal) forms and the Romanian substance.

Preaching the necessity of the critical eye (spirit) in the process of social, legal
and cultural modernization, Ibrăileanu has linked the Romanian legal identity
to a process of original adaptation during and after a critical / rational /
creative legal imitation (borrowing). Joining the historian A.D. Xenopol (1847-
, Ibrăileanu accepts the inevitability of the (legal) transplants but firmly
rejects the imitation as uncritical or irrational approach to modernization.
Thus, on the one side, the Romanian imitator must be fully aware of his
national and legal identity before meeting the foreign legal models. On the
other side, Ibrăileanu accepts the transformation of the Romanian society
under the impact of the transplanted (legal) institutions but understands it in
terms of national innovation .47

C) How to become modern by imitating foreign legal models and, at the

same time, knowing only organic social change?

I think this was, at the end of the day, the crucial issue at stake to the
proponents of the Romanian national legal identity. Almost all of them were
fully aware that any serious and consistent legal modernization could have
been done only through legal transplantation, i.e. imitation, of the Western
European legal models, both in the field of the public (constitutional and
administrative) and private (civil) law. In the same time, the great majority of
them were very sensitive to the issue of preserving the Romanian nation and
the Romanian national identity. The national self-awareness, the fight for the
national unitary state, the resistance, for centuries, against the neighbouring
empires all of these have turned into a threat any attempt to produce massive
and sudden change in the Romanian society through foreign imputes. The
equation between the Romanian nation and the Romanian ethnic group
hardened the process of legal modernization as long as the Romanian national
identity has been located both in objective (blood, common origin and
territory, language, common traditions, common religion and moral) and
subjective (common self-perception) elements. Even if there was no clear
consensus with regard the content of the Romanian national identity

47 Schifirneț, op. cit, supra, note 24, pp. 143 et seq.

(nevertheless, the Romanian traditional rural traditions and spirit seemed to
prevail), almost all proponents of the national legal identity accepted that any
process of legal modernization should start from the Romanian national
(legal) peculiarities and should protect them. This is why, any blueprint of
(legal) modernization proposing a top-to-bottom modernization through
massive (legal) imitation, associated with a considerable socio-cultural
engineering and a profound change of the Romanian core national and legal
identities, was short of massive approval. In other words, the Romanian
intellectual wanted a difficult to obtain thing: on the one side, a modern
Romanian legal system, transplanted from abroad and still connected to the
Romanian society, on the other side, to determine an organic social change in
the Romanian society.

In this context, the hard variant of the strategy to put on the same page the
Romanian legal identity and the Europeanization of Romanian legal system
through legal transplantation (imitation) was the Romanian-ization of the
transplanted legal institution by originally re-creating them so as the core
elements of the Romanian national (legal) identity are remaining untouched
or are suffering only a natural, organic, change. The soft (malleable)
alternative was the Romanian-ization of the transplanted legal institutions
and a limited change of the Romanian national (legal) identity under the
pressure of the legal transplants.

The balance was constantly and massively in favour of the hard alternative,
seeming to ignore all negative signals coming from the Romanian legal life
and tending to isolate the debate from the problem of legal effectivity and
efficacy. Thus, the obsession to preserve as untouched as possible the (rural)
core of the Romanian national identity has increased the peril to stabilize the
transplanted legal institutions as mere empty shells. The parallelism between
the forms and the substance would have become perpetual in many cases. The
creative and original adaptation of the transplanted legal institutions to the
Romanian (legal) culture often meant to compromise them, by getting them
afar from their original parameters of functionality developed in the exporting
societies. Romanian-ization could have meant sometime to kill the
transplanted legal institutions.
Witnessing this possible evolution, the expected organic change of the
Romanian society and its national identity occurred very slowly or did not
occur at all until the communist period. The Romanian elite did almost
nothing to underpin the organic evolution of the Romanian society so that it
would be capable to offer full support to its transplanted legal system.
Nonetheless, the soft alternative would not have had more chances to produce
modern legal change in the Romanian society. The ruling elite manifested
only a small interest to sustain an effective social engineering changing
enough the Romanian legal identity as to allow the transplanted legal
institutions to produce effective legal, social and economic modernization in
the Romanian society. In Constantin Schifirneț s terms, the legal
modernization in Romanian has remained only a tendential legal modernity.48
The Romanian national identity was almost entirely preserved but this
prevented the birth of a Romanian legal identity fully connected to legal
modernity. This development did nothing but to fuel the quarrel between the
pioneers of the legal modernization through Europeanization and the
defenders of the Romanian legal tradition.

7. A Theory of the Originally (Re) Created Romanian Law

The strategy to build a Romanian legal identity by original re-creation of the

transplanted legal institutions was at stake far until the end of 1940s and even
beyond. The debate started to be gradually decoupled both from the problem
of legal effectivity and even from the problem of legal modernization through
legal transplants. The academic focus felt on the originality of the re-created
imitated legal institution, on their quality of being Romanian. For this
purpose, the process of original re-creation was itself under strict scrutiny.
Moreover, the scholarly analyses of the Romanian legal history, especially of
the Romanian legal modernization in the 19th and 20th centuries have become,
somehow naturally, uninterested in the problem of the legal transplant as a
tool of legal modernization and the Romanian epistemology of the legal
transplant gradually lost its actuality.

The evolution of the imitated legal institutions inside the Romanian legal
system and the Romanian legal culture was compulsorily surveyed because it
had a strong identitarian relevance for those defending the national legal

48Constantin Schifirneț, Modernitatea tendențială. Reflecții despre evoluția modernă a societății

Bucure;ti Tritonic, .
pride. Thus, the accent shifted gradually from the futility of the legal
transplant to the meeting between the imitated forms and the Romanian
substance. In this context, the substance did not represent anymore either the
socio-economic, political, cultural background of the exporting legal systems
or the Romanian culture targeted by the transformative influence of the
transplanted (legal) institutions.49 The dialectical intermingle between the
foreign forms and the Romanian substance has produced a synthesis that
reveals the re-creative impact of the Romanian culture upon the imitated legal
institutions. Consequently, the Romanian substance became the
transformative, active, element in relation with the foreign legal shapes. Albeit
the later have determined a relative change of the Romanian substance, they
were far from having a relevance to the Romanian national and legal
identities. Finally, to the pioneers of the Romanian originally re-created law
was less important how the legal forms have succeeded to positively or
negatively transform the Romanian (legal) culture or how far the later has
succeeded to irremediably deteriorate the former. At stake was to prove that
the Lovinescian salvation of the national legal originality through adaptation
and recreation 50 could have satisfied the need to have and promote a national
legal identity.

Following these developments in the Romanian epistemology of the legal

transplant, the Romanian legal culture was not depicted anymore as a weak
receptor of legal institutions coming from Western-European legal models but
as a strong original adaptor (re-creator) of them. Consequently, the theory of
forms without substance has been transposed into a logic of the adapted law s
originality. Until late in the communist period, legal historians like Val. Al.
Georgescu highlighted the capacity of the Romanians to create a (modern) law
of their own. Even if this process meant to Romanian-ize a foreign imported
law, it resisted to an inorganic imitation with accents of cultural hegemony .51
Thus, the Romanian synthesis, in its genesis and functioning as a bourgeois
law of a South-Eastern European type, was the outcome of a fight meant to
affirm its originality and technical identity 52 of the Romanian modern law.
This trend was inevitably coupled with a gradual diminish of the need to

49 Schifirneț, op. cit., supra, note 24, pp. 149 et seq.

50 Lovinescu, op. cit., supra, note 42, p. 353
51 Valentin Alexandru Georgescu, Trăsăturile stilistice ale dreptului burghez, în Istoria dreptului

românesc, vol. II, partea a a Bucure;ti Editura Academiei RSR, , p. .

52 Id.
make legal transplants. This approach, fuelled later by the communist
ethnocentric nationalism and legal pride, survived the fall of the communism
and took a central place in the post-communist discourse about the Romanian
legal past. It was clear in the 1990s that from the interaction between the legal
institutions transplanted in the 19th century and the local substance, typical
Romanian has resulted in an original substance, typical Romanian .53

At a certain point‚ the unification through uniformisation and the integral

imitation accepted by Lovinescu as mechanisms of legal synchronization
between Western-Europe and Romania54 did not anymore fit the identitarian
needs of the Romanian legal culture. Accordingly, a distinct academic
discourse has emerged, trying to emphasize the righteousness of Lovinescu s
conclusion but firmly rejecting its premises. The integral imitation would
have emphasized the unescapable weakness of the Romanian legal culture, its
total submission to the Western-European legal culture, its impotence to
create original law and would finally annul the Romanian national and legal
identities. To the proponents of this approach, the original creativity of the
Romanians should have been cornered not only in the results of the legal
imitation, but also in the process of legal imitation. Rejecting the pessimistic
accusations of the evolutionists and organicists, that harshly condemned the
irrationality of the legal transplant, they have tried to prove that the rational
legal imitation really occurred and the imitated legal institutions, norms and
codes was already, before their application, the expression of an original
creativity. As a consequence, the legal imitation was rather partial than
integral, filtered by the critical eye of the Romanian elite and adapted to the
Romanian society s needs. Detaching itself from any debate with regard the
effective application of the imitated law in the Romanian society, from any
concern with regard the effectivity of the foreign legal institutions in the
Romanian legal culture, this approach was exclusively interested in the
identitarian relevance of the legal imitation process. It was developed mainly
in the interwar period, far enough from the moment of the massive legal
transplantation so that its supporters have succeeded to manifest a critical
stand both against the optimistic legal imitators and their initial critiques.
Thus, the Romanian Civil code of 1864 not only was not a mere faithful
translation of the French one but also it was more advanced than the French

53 See Angela Banciu, Istoria vieții constituționale în România – 1991) Bucure;ti Casa de
editură ;i presă Șansa SRL, 1996), p. 42
54 Lovinescu, op.cit., supra, note 42, p. 353.
Civil code in many aspects 55; as regards the Constitution of 1866, a real
intellectual battle was given not around its capacity to promote the liberal
constitutionalism in the Romanian society but around the mechanisms of its
making process. From this perspective, the ultimate expression of the
Romanian capacity to originally (re) create the Belgian Constitution of 1831
and to back up the Romanian legal (constitutional) identity was the ability to
not imitate it massively, urgently and directly but selectively, having a
convenient time of critical reflection and indirectly (working with previous
Romanian constitutional drafts inspired by the same Constitution).56

8. Conclusions

As C-tin Schifirneț correctly synthetized, in time, the Romanian elites have

spent almost all their vigour to prove the ethnic and national continuity, to
affirm the nation and the nation-state .57 This happened especially in the 19th
century and at the beginning of the 20th century, a period when the Romanian
society has known a process of modernization at all levels, including the legal
one. This modernization was driven by the same political and intellectual
elites, using intensively the tool of the institutional (legal) transplants from the
more developed (legal) models coming from the Western-European countries
(especially France and Belgium). A tension inevitably arose between the huge
intellectual and political effort to build a nation and a nation-state on the
grounds of the ethnic nationalism and the need to modernize them by using
foreign (legal) forms. While the Romanian society and the Romanian legal
system have known a more or less troublesome evolution under the pressure
of the foreign (legal) transplants, at the ideological level the scale turned
massively in favour of the Romanian national and legal identities. To a wide
category of Romanian (conservative) intellectuals was unacceptable to lose
the Romanian national (legal) identity in favour of a Western-European. The

55 Andrei Rădulescu, Izvoarele dreptului civil, în Pagini din istoria dreptului românesc, op.cit.,
supra, note 14, pp. 184-187.
56 See Ioan C. Filitti, Izvoarele constituției de la (Bucure;ti Tipografia ziarului Universul,
Bucure;ti, Constantin C. Angelescu, Izvoarele Constituției române de la , in (1926)
no 30 Dreptul, p. 237 et seq. Simina Tănăsescu, Despre aproximarea legislativă în viziunea lui
Constantin C. Angelescu. Contribuția sa la stabilirea izvoarelor Constituției române de la , în
G. Vrabie (ed.), Constantin C. Angelescu. Centenar 2005 – Simpozion Comemorativ Ia;i
Institutul European, 2006), pp. 82 et seq.
57 Constantin Schifirneț, Câți intelectuali români își afirmă identitatea națională?, in C-tin Schifirneț,

Românii, cum au fost ;i cum sunt Bucure;ti Tritonic, , pp. -77.

preservation of the national (ethnic) and legal identities become, in the context
of Europeanization through (legal) transplantation, the new mission of the
Romanian intelligentsia. While the legal modernization was not considered a
goal per se there was no simply instrumentalized process of legal
transplantation but one intimately subordinated to the building of a national
legal identity: the legal transplant was functional only as long as the imitated
foreign legal institutions were reflecting the Romanian national character.
Paradoxically, this kind of legal transplant was not necessarily a successful
one: a fully successful legal transplant, in the sense of having foreign legal
institutions working in a fashion identical to their origin, was unconceivable
due to its non-identitarian character.

Accepting the reality or inevitability of the (legal) institutional imitation,

many Romanian intellectuals have grounded the national and legal identities
in the idea of creative (legal) imitation. Following, one of the most prominent
intellectual strategies to build a Romanian legal identity through legal
imitation implied a process of re-creation, where the foreign legal institutions
are supposed to be originally adapted to the Romanian national character
during and / or after their imitation. At some point we are in the presence of
an intellectual discourse that went beyond the mere success and failure of the
legal imitation. At stake was the necessity to prove that the Romanian legal
culture is powerful enough so to mark the Romanian history and the history
of the European law with original legal creation.

From my point of view, both the theory of the Romanian adapted (re-created)
law and the logic of its originality imply only limited epistemological value
with regard the process of legal modernization through legal transplants. On
the one side, it departs from a potentially dangerous methodological premise:
any process of legal transplantation ends, regularly, in an adaptation and
well-functioning of the transplanted legal institutions to the (legal) culture of
the importing society. The inevitable Romanian-ization of the transplanted
legal institutions, regardless they have or not the potential to positively or
negatively irritate the Romanian society, would theoretically turn the foreign
legal institutions into ones a priori perfectly compatible with the Romanian
(legal) culture. On the other side, its main methodological deficiency is it got
the problem of legal transplantation out of the Romanian scholarship of the
legal history. As long as the transplanted legal institutions have been adapted
(re-created), becoming a perfectly integrated part of the Romanian legal
landscape, any further focus with the lens of the legal transplant theory
seemed to be futile. When acknowledged, the malfunction of these institutions
has been gradually assessed against the Romanian (legal) cultural
background and not against their quality of being transplanted institutions.
They were treated as ineffective legal institutions and not as failed legal
transplants. Or, this approach would deprive the scholarship of Romanian
legal history of one of its main methodological tools necessary to capture the
inner dynamic of the Romanian legal modernization.

This methodological attitude is perfectly understandable in the logic of the

Romanian legal identity. Since the main purpose of the proponents of the
Romanian legal identity was to adapt through original re-creation the massive
amount of legal institutions imitated by the Romanian elites in the 19th
century, to analyse them as pure Romanian origin legal institutions was a
natural consequence. This approach made of the legal transplant an ideal tool
meant to construct and promote a Romanian legal exceptionalism. Despite
Ihering s assertion that the reception of foreign law is not a matter of
nationality, but of usefulness and need , the Romanian case proves that
nationality really mattered in the 19th century and the beginning of the 20th
century: the legal imitation had to comply both with the need of legal change
and the need to preserve the national identity.