Centre for Asian Legal Studies

Pluralism, Transnationalism & Culture in Asian Law

by Professor Andrew Harding

Today, discussions of comparative law are often concerned with the question of legal transplantation. Legal transplantation is a process in which a written law of one locale is adopted by some other locale as its own. The debate over legal transplants dates back to the 1970s, when Alan Watson argued that transplantation has been the principal mode for the legal development and evolution of Europe over the last millennium. Watson's argument appeared to challenge existing arguments that were then dominant that a locale's law was symbiotic on that locale's culture ("culture" in this context referring to a locally shared collection of meanings, discourses and shared social symbols that often operate on a preconscious level-what Clifford Geertz famously referred to as "local knowledge").

The interest in legal transplantation is not simply academic. Legal transplantation has become the dominant strategy for promoting legal and economic development. For example, international development organizations frequently seek to promote legal development by formulating lists of "best practices"-model laws that are derived from the laws found in advanced industrial economies (invariably those of the US and Western Europe), and which, if adopted by developing countries, would supposedly significantly promote economic and social development. These best practices have generally been used to promote distinctly nee-liberal economic-developmental agenda, and thus arguments about the symbiosis between law and culture have been particularly appealing to scholars and activists who are sceptical about the social benefits of economic nee-liberalism. Others have argued that the reason why legal transplants often do not work in the developing world is that they fail to take into account the local legal cultures and traditions and the legal pluralism of many developing countries. The debate over the developmental meaning of "legal transplants" thus has implications that extend far beyond abstract theory, impacting not only developmental strategies, but ultimately the aims of law and legal development.

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