Legal Transplants: Turkey and China Compared
This paper examines the concept of legal transplantation through a comparative analysis of two distinct national contexts: Turkey and China. Drawing on scholarship by Orucu, Oguz, and Dai, the paper explores how legal transplantation involves the absorption, adaptation, and integration of foreign legal concepts, norms, and systems into an existing legal order. It discusses Turkey's adoption of the Swiss Civil Code and the challenges of reconciling official law with cultural and religious traditions under a centralized state model. It then considers China's historical experience with legal transplantation from the late Qing Dynasty onward, noting how constitutional frameworks and foreign legal principles were gradually absorbed into Chinese legal culture.
- Introduction: Legal Transplantation and Legal Pluralism: Defines legal transplantation, pluralism, and diffusion of law
- Turkey: Centralized Law and the Swiss Civil Code: Turkey's adoption of Swiss law and centralist legal model
- China: Historical Legal Transplantation: China's absorption of foreign law from Qing Dynasty onward
- Summary and Conclusion: Comparative synthesis of Turkey and China transplant experiences
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What makes this paper effective
- The paper uses a clear comparative structure, dedicating separate sections to each national case study before synthesizing findings in the conclusion.
- It grounds abstract concepts such as legal pluralism and legal centralism in concrete national examples, making the theoretical framework accessible and applied.
- The use of multiple scholarly voices — Orucu, Oguz, Dai, and Chiba — demonstrates engagement with specialized literature across different legal traditions.
Key academic technique demonstrated
The paper effectively deploys the technique of theoretical framing followed by case application. It introduces foundational concepts (legal transplantation, legal pluralism, diffusion of law) in the introduction before applying each concept to the specific national contexts of Turkey and China. This deductive structure helps the reader follow how abstract legal theory manifests in real legal systems.
Structure breakdown
The paper opens with a theoretical introduction covering legal pluralism, legal centralism, and the definition of legal transplantation. It then proceeds through two national case studies — Turkey and China — each treated in its own section. The conclusion synthesizes the comparative findings and reinforces the concept of diffusion of law. The overall structure is straightforward, logical, and well-suited to a comparative legal analysis at the undergraduate level.
Introduction: Legal Transplantation and Legal Pluralism
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 this purpose, Turkey and China are examined as case studies in legal transplantation.
Orucu (2008) notes 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 universality of western law'" (p. 1). Chiba is reported to propose 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 expected that 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, pp. 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 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 further 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. Such is the case in Scotland, where George Joseph Bell's Principles of the Law of Scotland — conceived not as an authoritative work but as a guide for students — ultimately became a foundational source of established principles in Scottish law (Reid, 2011, paraphrased). This concept connects to what Westbrook describes as the "diffusion of law," which "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).
Bibliography
Dai, J. (2009). On several problems in legal transplantation. Journal of Politics and Law, 2(3).
Gunderson, J. L., & Waelde, T. W. (1994). Legislative reform in transition economies: Western transplants — a short-cut to social market economy status? International and Comparative Law Quarterly, 43(2), 347–378.
Oguz, A. (2005). The role of comparative law in the development of Turkish civil law. Pace International Law Review, 17(2), Article 9.
Orucu, E. (2008). Judicial navigation as official law meets culture in Turkey. International Journal of Law in Context, 4(1), 35–61.
Reid, K. (2011). From text-book to book of authority: The principles of George Joseph Bell. Edinburgh Law Review.
Shaffer, G. (n.d.). Transnational legal process and state change: Opportunities and constraints. University of Minnesota Law School Legal Studies Research Paper Series, Research Paper No. 10-28.
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