27 December 2012

ARTICLE: Michaels on Legal Transplants

Our friend at the Irish Society of Comparative Law (ISCL) recently posted information on Ralf Michaels' 'One Size Can Fit All' – On the Mass Production of Legal Transplants', available on SSRN and to be included in Günter Frankenberg (ed), Order from transfer: studies in comparative (constitutional) law (Elgar, forthcoming 2013). 

Its abstract reads:

Law reformers like the World Bank sometimes suggest that optimal legal rules and institutions can be recognized and then be recommended for law reform in every country in the world. Comparative lawyers have long been skeptical of such views. They point out that both laws and social problems are context-specific. What works in one context may fail in another. Instead of “one size fits all,” they suggest tailor made solutions.

I challenge this view. Drawing on a comparison with IKEA’s global marketing strategy, I suggest that “one size fits all” can sometimes be not only a successful law reform strategy, but also not as objectionable as critics make it to be. First, whereas, “one size fits all” is deficient a functionalist position, it proves to be surprisingly successful as a formalist conception. Second, critics of legal transplants often insists on what can be called “best law” approach, whereas in law reform, what we sometimes need is law that is just” good enough” law. “Third, legal transplants no longer happen in isolation but rather on a global scale, so that context-specific rules are no longer necessarily local.

This is not a plea for formal law, for commodification of laws, and for “one size fits all”. But it is a plea to overcome the romanticism and elitism that may lurk behind the seemingly benign suggestion that law reform must always be tailored to the specific societal context.

Note, too, the ISCL's 2013 Conference and Call for Papers.

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