Legal Transplants: Turkey and China Compared

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).

Turkey: Centralized Law and the Swiss Civil Code

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 has undergone significant change in its social, political, ideological, and religious dimensions since its founding (Orucu, 2008, paraphrased). According to Orucu (2008), when ideas from two interpretive models are combined — one rooted in cultural, traditional, and religious understanding, and the other in official law — each can draw upon the other to create a "cultural conversation" that is broader in its understanding (paraphrased). However, in Turkey this type of cultural conversation is not permitted, as no competition between official rules and cultural, traditional, or religious understanding is allowed. In instances of contradiction, it is the court system that attempts 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 understood as "a continuing, living social process from the adoption point forward" (pp. 10–11). Oguz reports that soon after the Swiss Code was 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 was expected, however, that it would take time for the legislative law to be fully adopted as the law of Turkey.

While the legislature anticipated that judges in Turkey would draw upon the theoretical background and flexibility of the Swiss Code — allowing it to morph into a national legal system — difficulties arose in the practical application of the law. The first notable difficulty was the interpretation of the language of the Turkish Code (Oguz, 2005, paraphrased). The method adopted was a conceptual rather than a literal interpretation of the code. The primary responsibility for adapting the new legal system was assigned to students pursuing legal theory and education, and the mission was accomplished in what is described as "a step-by-step manner" (Oguz, 2005, p. 12).

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.

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