Legal Transplants the Objective of This Study

¶ … Legal Transplants

The objective of this study is to discuss and compare two legal transplants with reference to at least one African or Asian legal system. For the purpose of this work, Turkey and legal transplants will be examined.

The work of Orucu (2008) states that Chiba (1986) relates the "concept of legal pluralism…as an effective attack on the common sense of orthodox jurisprudence by rejecting the 'oneness of state law as law or university of western law." (p.1) Chiba is reported to proffer a model of official law "as always intersecting with unofficial law and legal postulates, and never existing in isolation." (Orucu, 2008, p.1) It is the expectation that the state laws will in cohesion with "society and its normative orders, and religion and worldviews…work together to achieve a balanced and sustainable legal order." (Orucu, 2008, p.1-2) However, according to Orucu "legal centralism reflects the ambition of the modern nation state for total legal control and by definition rejects polycentric law." (2008, p.2)

The work of Dai (2009) entitled "On Several Problems in Legal Transplantation" states that legal transplantation that exists between nations and national districts "usually means the digestive and absorptive process happened in legal article, legal principle, legal system, legal norm, legal concept and technology, legal idea." (p. 1) Dai states that legal transplantation is "a mutual processing including implantation of the law and explanation of the law." (2009, p.1)

Law may be derived from unusual and even unintended sources and such is the case in Scotland as George Joseph Bell's 'Principles of the Law of Scotland' is stated to have, while not being conceived as an authoritative work, but instead as a work for the information of students, has become principles established in Scotland's laws. (Reid, 2011, paraphrased) This concept is referred to in the work of Westbrook who states "The phrase "diffusion of law" evokes an essentially spatial imagination of social process -- the term tacitly imports a geography, in which law is somehow transported from one place to another." (2006, p.1)

I. Turkey

Turkey is described as a "unitary nation state, which is the source of law and the legitimizer of sources of law. This is a monolithic, centralized, territorial and top-down model of law, which may or may not allow competing sources of law to exist. When it does not, it is regarded as intolerant, undemocratic, even despotic and self-referential. When it does however, this can only be a weak version of legal pluralism where the monolithic, top-down source of law is receptive to other sources, and therefore regarded as more tolerant, democratic, multicultural and reflecting an open society. As pointed out, in the Western tradition, on the whole, the stronger version of legal pluralism, where levels of law of equal value co-exist in the same territorial or social space as overlapping orders, is not favored. The centralist forces of the unitary state do not live comfortably with so many rivals." (Orucu, 2008, p.3)

The Turkish legal system is reported to have since it was begun to change the ideas on social, political, ideology and religious systems that were encountered. (Orucu, 2008, paraphrased) According to the work of Orucu (2008) when ideas from two models under interpretation are combined and one of these depends on cultural, traditional and religious understnaidng and the other depending on the understanding of what is official law each can draw upon the other and create a "cultural conversation" that is wider in its understanding. (paraphrased) However, in the country of Turkey this type of cultural conversation is not allowed since no competition between official rules and cultural, traditional or religious understanding is allowed. In such instances of contradiction it is the court system that tries to create harmony. (Orucu, 2008, paraphrased)

The work of Oguz (2005) entitled "The Role of Comparative Law in the Development of Turkish Civil Law" states that the Turkish code is based on the "legal thoughts, ideals and perspectives of Switzerland, rather than just its legal code." (p.10) According to Oguz this adoption should be held as a "continuing, living social process from the adoption point forward." (p.10-11) Oguz reports that soon following the Swiss Code being passed, "the law of obligations, commercial law, regulations, and laws of judgment and execution were passed and Turkey became a member of the western legal family." (2005, p.10) It is stated however, that it would take time for the legislative law to be adopted as the law of Turkey. While it was expected by the legislature that the judges in Turkey would use the theoretical background and flexibility of the Swiss code" and that this would morph into a national legal system difficulties arose in application of the law and noted as the first of difficulties with interpreting the language of the Turkish Code. (Oguz, 2005, paraphrased) The method used was a conceptual rather than literal interpretation of the code and it is reported that the primary responsibility of the new legal system adaptation was assigned to students pursuing theory and legal education resulting the accomplishment of this mission in what is described as a "a step-by-step manner." (Oguz, 2005, p.12)

II. China

The word transplantation in the Chinese language has two primary meanings: (1) grafting, which "in a botanical sense, refers to botanical transplantation; and (2) technological transplantation, which refers to a particular organ or body part of human beings. (Dai, 2009, p. 1) However, in regards to legal transplantation there are reported to be a diversity of views that exist and one being that legal transplantation is "followed by the identification, recognition, adaptation, integration, based on the introduction, absorption, adoption, uptake, assimilation of foreign law (including the legal concepts, technology, norms, principles, systems and legal concepts, etc.)." (Dai, 2009, p.1)