Article title Law as transposition
Authors
Name of magazine Scientific-practical professional journal «Comparative Law»
(Ukrainian language)
Issue 1-2/2013
Сторінки [102-120]
Annotation

Law permanently moves, connect, disconnect, change, and contribute to change. The author suggests that all is a process of transposition, tuning and fitting. The movement of legal institutions and ideas is trans-border and such transmigration is a natural phase in legal development. The amount of innovation in law is small and borrowing and imitation is of central importance in understanding the course of legal change.

But, obviously, ill-considered and not properly tuned or adapted transplants can be dangerous. Transplanted legal system not compatible with the culture in the receiving country, without the appropriate transposition and tuning, will create only a virtual reality. Imposed reception creates the emergence of new clashes between legal cultures themselves, or legal cultures and socio-cultures. Internalization of norms and standards by people in the recipient’s system is crucial for the fruitful development. This is facilitated by tuners. Tuning is the key for the success of transplanted law. It is internal tuning that is required and the tuners should ordinarily be the domestic judges. However, for successful transposition, tuning is necessary at all levels, backed by legal education, pro-active judges and creative scholars. The times of reception are also the times of national creativity. 

This study approaches law as a series of transpositions and tuning, and aims at replacing the concept of legal transplant with legal transposition. Transposition is the convergence that does not mean to attempt to create sameness, but to accept diversity. Only when diversity is accepted can there be 'healthy infusion'. Only then can the transferred norms become “internalized” and thereby work. Now all law is mixed and there are no exceptions. Interlocking diversities lead to convergence. The legal world at large may benefit and be enhanced by the divergences created in different soils. Harmony is, after all, a possibility of communication and conversation. The author believes that analysis of the paths, methods, and consequences of transfrontier mobility of law will be the most significant contribution of comparative law to our century.

Keywords transposition of law, transmigration of law, legal borrowing, legal imitation, legal transplant, legal irritants, reciprocal influence of laws, legal reception, adaptation of law, internalization of law, tuning of transplanted law.
References