17 May 2013

ARTICLES: Picker on International Economic Law/Peerenboom on Legal Transplants

Our own Colin Picker has just published 'Comparative legal cultural analyses of international economic law: a new methodological approach' in the new Chinese Journal of Comparative Law.

The abstract reads:

The effective development and operation of the law faces many obstacles. Among the more intractable yet hidden barriers to the law are legal cultural disconnects and discontinuities. These occur when opposing legal cultural characteristics from different legal cultures are forced to interact as part of the implementation of the law across two different legal cultures. This conflictual interaction can impede or block the success of that law. While present in domestic legal systems, these conflicts are more likely, and may be deeper, between the many different legal cultures involved in the international legal order. Identification of such legal cultural disconnects and discontinuities is the first step towards developing strategies to ameliorate potential conflicts between opposing legal cultural characteristics. This identification requires the examination of the relevant legal systems with legal culture in mind—a legal cultural analysis. However, this methodology is rarely employed. To the extent that we do see legal cultural analyses, they are applied almost exclusively in the domestic arena. When it is applied across legal systems, it becomes a part of comparative law methodology. This merger of comparative law and legal cultural approaches is unusual, indeed almost unheard of in the international legal arena. This article explores this methodology and argues that it is possible and valuable.

Note, too, Randall Peerenboom's 'Toward a methodology for successful legal transplants':

The results of many reform projects focused on the substance of legal transplants, which have prescribed particular laws, practices, or institutions, concepts, norms, and attitudes, have been disappointing. The lacklustre results have called attention to the need to develop a workable methodology for legal reforms, focusing on the processes of reform. One of the shortcomings of the 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 to differentiate developing countries and develop categories or ideal types based on the types of challenges they face. Accordingly, this article lays the groundwork for a methodology of legal reforms based on differential analysis by distinguishing between three ‘exceptional cases,’ including failed states, post-conflict states, and transitional states, as well as between low-income countries and middle-income countries, and it develops a preliminary methodological framework for assessing legal reforms and legal transplants.                 

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