Article title The Impossibility of «Legal Transplants»
Authors
Name of magazine Scientific-practical professional journal «Comparative Law»
(Ukrainian language)
Issue 1-2/2013
Сторінки [46-59]
Annotation

«Legal transplant» implies the displacement of a given norm across borders, from one to other legal system. The author is strongly disagrees with A. Watson and his transplant these. Any rule is tied closely with social-cultural and other contexts in home jurisdiction and could be transported only as a bare propositional statement but not as rule itself — which meaning comes outside from the context and throw the interpretation of legal community. No one can transport the context, the interpretative community, the culture and the pre-knowledge of the inhabitants.

It is excluding the transfer of the rule as the meaningful construction. Even if the meaningless set of words would be displaced it will be imposed with new meaning in a host culture and society.

The author considers the these of «legal change as legal transplants» as the idea about the easy way of law reform as being misleading and argues the impossibility of «legal transplants». The perceiving and comprehension of distinctions, uniqueness, otherness of the other, in author’s view, has to be the main focus of comparative law.

Keywords legal transplant, cultural context of the law, legal rule, legal uniqueness, otherness.
References