The Impossibility of Legal Transplants
![handle is hein.journals/maastje4 and id is 115 raw text is: Pierre Legrand *
The Impossibility of 'Legal Transplants'
[A] comparative study [sh]ould not aim at finding
'analogies' and 'parallels', as is done by those
engrossed in the currently fashionable enterprise of
constructing general schemes of development. The
aim should, rather, be precisely the opposite: to
identify and define the individuality of each
development, the characteristics which made the one
conclude in a manner so different from that of the
other. This done, one can then determine the causes
which led to these differences.
Max Weber'
§ 1. 'Legal Transplant' Explored
To 'transplant', according to the Oxford English Dictionary, is to 'remove and
reposition', to 'convey or remove elsewhere', to 'transport to another country or place
of residence'. 'Transplant', then, implies displacement. For the lawyer's purposes, the
transfer is one that occurs across jurisdictions: there is something in a given jurisdiction
that is not native to it and that has been brought there from another. What, then, is
being displaced? It is the 'legal' or the 'law'. But what do we mean by the 'legal' or
the 'law'? An answer to this question seems imperative if comparatists wish to draw the
line, as I believe their hermeneutical quest for understanding compels them to do,
between instances of displacement having law as their object and others not having law
as their object. Although they tend not to argue the point expressly, students of 'legal
transplants' have emphatically embraced the formalist understanding of 'law'. Thus, the
* Professor of Comparative Legal Culture, Tilburg University (NL). An early version of this essay was
given at the University of California, Hastings College of the Law, in January 1997. I am grateful to
Ugo Mattei for his kind invitation. I owe Linda Rae Legault for helping me to organize the argument.
The usual disclaimer applies.
1. Max Weber, The Agrarian Sociology of Ancient Civilizations, transl. by R.I. Frank (NLB, 1976) at
385 [originally published, in German, in 1909].
MJ 4 (1997)
111](ViewImageLocal?handle=hein.journals/maastje4&div=13&collection=&method=preview&ext=.png&size=3)
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The Impossibility of Legal Transplants
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