Peerenboom, Randall, Toward a Methodology for Successful Legal Transplants (January 9, 2012).
Global efforts to promote rule of law and good governance have led to renewed interest in legal transplants. Many reforms projects have focused on the substance of legal transplants, prescribing particular laws, practices or institutions, concepts, norms and attitudes – usually those found in the advanced economies of Euro-America – for developing countries. The results of such projects have been disappointing. The lackluster results have called attention to the need to develop a workable methodology for legal reforms, focusing on the processes of reform. Such a methodology must be based on a better theoretical and empirical understanding of the conditions that determine the success or failure of legal transplants. Part I provides a general overview of the legal transplant literature, focusing on descriptions, prediction and evaluation. One of the shortcomings of current rule of law promotion programs is that they tend to prescribe a common set of 'best practices' for all countries. Relatively little work has been done on differentiating developing countries and developing categories or ideal types based on the types of challenges they face. Accordingly, Part I lays the groundwork for a methodology of legal reforms based on differential analysis by first distinguishing between three 'exceptional cases': failed states, post-conflict states, and transitional states. In particular, Part I contrasts the particular problems facing low-income countries (LICs) with those facing middle-income countries (MICs). Part II then develops a preliminary methodological framework for assessing legal reforms and legal transplants. Part III concludes.
Perju, Vlad, Constitutional Transplants, Borrowing, and Migrations (January 9, 2012). OXFORD HANDBOOK ON COMPARATIVE CONSTITUTIONAL LAW, M. Rosenfeld , A. Sajo, eds., Oxford University Press, 2012; Boston College Law School Legal Studies Research Paper No. 254.
This paper, which will be published in the Oxford Handbook on Comparative Constitutional Law (M. Rosenfeld & A. Sajo, eds., forthcoming 2012), explores the borrowing and migration of constitutional ideas and institutions across jurisdictions. Despite the fact that comparative constitutional law is a form of comparative law, comparative constitutionalism has thus far largely ignored the rich debates in comparative law on the topic of legal transplants. I argue that those debates can illuminate our understanding of how constitutional doctrines and ideas travel. After noting the missing legacy of comparative legal thought in the constitutional realm, the paper studies the anatomy of constitutional transplants (object, timing, motivations and patterns) and provides a framework for their normative justifications. The paper concludes with remarks on constitutional convergence.
Miller, Russell and Zumbansen, Peer, Comparative Law as Transnational Law: A Decade of the German Law Journal (2011). COMPARATIVE LAW AS TRANSNATIONAL LAW: A DECADE OF THE GERMAN LAW JOURNAL, R. Miller & P. Zumbansen, eds., Oxford University Press, 2011; Washington & Lee Legal Studies Paper No. 2011-25.
In July, 2009, the German Law Journal marked its first decade with a conference hosted by the Bundesministerium der Justiz (Federal Ministry of Justice) in Berlin. The resulting discussion of the conference underscored two points: there was easy consensus that we are living in a transnational era, and that there was little agreement on how to define, or, indeed, imagine transnational law and the transnationalization of legal cultures. The majority of the participants at the conference, the scholars and commentators who have contributed to the German Law Journal during its first decade have inclined toward the engagement approach to transnational law. They also have performed or lived the engagement – implicitly – in ways that the German Law Journal uniquely make possible with its monthly, online, English-language publication of scholarship and commentary on developments in “German, European, and International jurisprudence.” The German Law Journal is an example of transnational law in action. The German jurists who regularly write about German law in English for the Journal are inherently involved in a transnational law encounter even if they do not consciously acknowledge the phenomenon. Additionally, the Journal’s broad mandate fosters engagement between legal systems in a way that is fundamental to transnational law and the transnationalization of legal cultures ...