Legal Transplantation

Tarence Ragalo and Trisha Owegi

Legal Transplants and the Frontiers of Legal Knowledge, Michele Graziadei

Chapters I-II: Legal Transplantation Broadly
Defined
Q: How does legal change unfold?
• Part of a much broader field of study - comparative law – the
study of differences and similarities between laws and legal
systems
• Defined generally, ‘legal transplants’ indicates the moving of a
rule or a system of law from one country to another

• Most legal systems reflect features of other legal systems

• “Borrowing and transplantation are regular
occurrences..”(p. 697)

• The study of legal transplants is also an different way of

studying the subject of comparative law…
Benefits of Legal Transplants
- The process can be used by policy makers and
governing powers to achieve legal reform
- Improving a national legal system

- Providing a uniform legal framework on certain

matters such as antiterrorism, trade, human rights
protection etc.
- ..legal transplantation is a study international
bodies often take interest in..

- Establishing regulatory systems in economic blocs

e.g. the European Union
 Criticisms of Legal Transplantation
Definitions and Terminology
- The study of legal transplants (and
comparative law) often involves analyzing
historical events
- Sometimes, this involves applying concepts
and categories to a community that are not
shared by members of that community

• What time frame should be used in assessing

whether a law has really been ‘transplanted’?

• “Transplant” implies displacement – if the law

has been assimilated into the recipient country,
it no longer has any foreign elements
Legal Transplantation Contextualized: Kenya
Consider our Colonial History…
- Legal transplantation often occurs as a result of the conquest of
one people over another – e.g. during the expansion of European
influence beginning in the 1500s
- Sometimes, “borrowed law relates to the local conditions..” e.g.
when the Japanese govt. relied on Germany’s legal models to
change their laws

- Has our law always been an expression of our Kenyan culture?

- Consider the Independence Constitution
- Imported law does not always fit local conditions
- Can law be said to have been ‘transplanted’ when it was
merely imposed?

- Borrowing and transplantation are normal occurrences

- A more organic approach?
- Is there a way to do it without the recipient legal system
being compromised?
 III. MACRO-MICRO I:
LANGUAGE AND TOOLS
• In Chapter III of the article, Graziadei introduces 3 key concepts which
are useful in discussing legal transplants and give context to his
arguments.
• These are:
1. THE MACRO VIEW.
2. THE MICRO VIEW.
3. MEDIATED ACTION.
 MACRO vs MICRO
• MACRO VIEW: this is the conventional or mainstream method of legal analysis which can be described as
“top-down”. Under this perspective:

 Norms or Laws are seen as being imposed from above, through a chain of command.
 Any legal changes or reforms are a matter of sovereign will and sovereign power (i.e., they occur by
way of decision-making located in centres of power).
• MICRO VIEW: this is a “bottom-up” method of legal analysis. It involves:
 Investigating the engagement with legal transplants at an individual level i.e., analysing the social acts
of individuals when interacting with or implementing legal change. These individual acts can be
through verbal or non-verbal behaviour.
 Acknowledging that language:

1. is just one of many tools that humans employ.

2. floats on a sea of implicit knowledge and understanding.
 MEDIATED ACTION

• MEDIATED ACTION: this is a term originally drawn from cognitive

psychology. It is a method of researching how people use all kinds of
objects and tools, both physical and psychological to structure their
interactions, communicate with each other, and think.
• In the article, Graziadei describes it as an act performed by an individual
making use of features of the environment as tools to interact in a specific
setting.
• The article also cites the work of Soviet psychologist, Lev Vygotsky, who
theorized that higher mental functions (e.g., language, memory, thinking,
attention, abstraction and perception) are socially or culturally mediated
(i.e., developed through social interaction).
 MEDIATED ACTION
• When people function at this level, they do not act directly on the
world but incorporate their social and cultural conditioning into the
act. In this sense, the higher mental functions can be viewed as
“tools” which indirectly facilitate the act.
• As with any tools, the way that they are actually used may not
correspond to their intended use (e.g., when someone uses a broom
to pretend that they are riding a horse etc.)
• The role of MEDIATED ACTION is brought to the forefront when legal
transplants are analysed using the MICRO VIEW method, as I will
highlight shortly.
 III. MACRO-MICRO I:
SUMMARY
• Graziadei argues that it is impossible to make sense of legal transplants if one
focusses on the MACRO VIEW at the expense of the MICRO VIEW. He states
that the former is not the best framework to understand legal changes.
• He concedes that legal change be brought about by a strictly “top-down”
process, as history has proven “beyond a reasonable doubt”.
• He, however, outlines some limitations of the Macro View which include
failures to:
1. Account for Customary Law, which works without putting great faith in words and
without a sovereign who is able to express a will.
2. Explore the silent dimensions of the law, which he describes as “9/10 of the iceberg
below the water line” (e.g., historical explanations for legal change at the level of human
interaction, even when the politics and power relations which drive the process of change
are crystal clear when a “top-down” approach is taken).
 III. MACRO-MICRO I:
SUMMARY
• When one takes the MICRO VIEW, legal transplants as social acts
could be said to be occur through MEDIATED ACTION.
• In this case the “tools” employed in carrying out the transplants are
constituted by the original legal materials imported to do so (e.g.,
policy or legal solutions and legislative texts from foreign
jurisdictions).
• Graziadei argues that the course of legal change would be different
without these “tools” but notes that, in practice what the transplant
achieves is more than a mere reproduction of what was originally
imported.
 III. MACRO-MICRO I:
SUMMARY
• In the article, Graziadei gives the example of Mordechai Beham, a young lawyer who was tasked
with preparing the first draft of the Israeli Declaration of Independence within a short time frame.
• He was unable to draft it from scratch and did not know where to begin, so he relied on a
neighbour’s extensive library and armed himself with three pages of English citations.
• The first draft contained quotes from the American Declaration of Independence, a verse from the
Book of Deuteronomy, a few words from the English Bill of Rights and comments about the UN
Partition Plan (“tools”).
• The final version of the Declaration was not exact duplicate of the texts which he drew inspiration.
Through MEDIATED ACTION * the end result was something uniquely Israeli.
* Utilising the “tools” on hand through the lens of the social and cultural experience of the Jewish people who experienced centuries of persecution without a homeland.
 IV. MICRO-MACRO II:
IDEOLOGY
• In Chapter IV of the article, Graziadei discusses the crucial role that
IDEOLOGY plays in legitimizing laws, including legal transplants. They form a
basis for the consensus or resistance to the transplanted law.
• He states that ideologies function as means of coordinating the actions of the
members of a group.
• He notes that ideologies essentially act as an interface between individual
practice and collective action and their adherents will mostly:
1. Act in the same way in a similar situation;
2. Show willingness to carry out joint tasks; and
3. Contribute to group cohesion.
 IDEOLOGY
• When IDEOLOGY is used as a means of facilitating change, it works more
smoothly when it appears to be "neutral" because it relies on
assumptions that are largely unchallenged (e.g., ideas of progress,
modernization, development).
• It could also be used as a means of legitimizing domination (e.g., by
asserting that certain ideas are God-given, natural, inevitable, etc.). This
effectively breaks down psychological resistance them by making any
alternatives seem unreal.
• Ideologies are not perennial/eternal. They rise and fall, and the most
successful ideologies constantly evolve to adapt to changing
environments.
 IDEOLOGY
• Graziadei cites a selection of articles which discuss legal transplants
through the prism of ideology including the following two, which I will
discussed further:
1. ‘Transplants and Timing: Passages in the Creation of an Anglo-American
Law of Slavery’, by Christopher L. Tomlins.
2. ‘Race, Marriage and Sovereignty in the New World Order’, by Jane Dailey.
‘Transplants and Timing: Passages in the Creation of an Anglo-American Law of Slavery’

• Discusses how Anglo-American law of slavery combined two transplanted

resources (“tools”) within itself being:
1. Natural Law (which has been controversially used to justify notions of racial
hierarchy/inherent superiority) and the Law of Nations (which justified slavery as a
consequence of just war).
2. English Laws relating to the management, distribution and control of movements of
people.
• Local innovations supplemented these by compensating for any
deficiencies and limitations before being exported to other states within
the union as a “third species” of transplant.
• The utilization/adaption of these “tools” through the filter of IDEOLOGY
is an example of MEDIATED ACTION.
‘Race, Marriage and Sovereignty in the New
World Order’
• Discusses the debate on racially restrictive marriage laws in the USA after
California overturned its anti miscegenation law in 1948. In doing so state
legislators cited the United Nations Charter and the 14th Amendment *.
• Owing to ideological attitudes regarding race, many saw this as an example of
the peril of international law which had the potential to undermine local
custom and assault domestic racial conventions at their foundations.
• It resulted in an effort to amend the Constitution and limit the treaty-making
powers of the president.
• The response is an example of IDEOLOGY forming a basis for the resistance to a
transplanted law.
* Guarantees “equal protection of the laws” to all citizens including former slaves.
 V. DOING JUSTICE IN THE CASE OF
TRANSPLANTS
• In Chapter V of the article, Graziadei discusses how studying legal
transplants using the MICRO VIEW approach can result in a reflection
on justice which transcends the boundaries of a single legal system.
• It allows jurists to confront the notion of justice with the challenge of
diversity among communities and individuals.
• Graziadei argues that most of the theories of justice that are in
circulation do not stray from a narrow notion of community (whether
this is defined in political or moral terms). As a result, these theories
have a difficult time with questions of justice that concern those who
do not belong to the community, or who live at its margins.
 JUSTICE
• The transplantation process helps undermine these narrow notions
of justice and dispel the short-sighted idea that the boundaries of
justice should only be confined to the boundaries of community.
• Bringing together bodies of law that are based on different
assumptions also helps jurists to critically evaluate existing norms and
question their validity.
• Graziadei also distinguishes between legal transplants involving
violence and coercion and peaceful ones. For the former, he gives
the example of an ethnocracy (i.e., apolitical structure in which the
state apparatus is controlled by a dominant ethnic group).
 INJUSTICE
• Legislators there often devise systems of differentiation and construct
legal categories that facilitate the application of discriminatory rules, but
without openly admitting that they are resorting to discriminatory
treatment.
• A ‘bottom-up’ perspective when studying transplants in these tragic
contexts helps jurists to highlight and gain a wider understanding of
injustice and its effects by:
1. analysing how the people who are involved in transplants imposed by violence take
action and react to them on an individual level; and
2. exposing the brutal effects that the exercise of power has on the lives of those who
live under the transplanted law and raising broader questions about what “the law”
is (e.g., philosophical).
The End