The Impossibility of ‘Legal Transplants’
| Published date | 01 June 1997 |
| Date | 01 June 1997 |
| Author | Pierre Legrand |
| DOI | 10.1177/1023263X9700400202 |
| Subject Matter | Article |
Pi err e Le gra nd
Th e Im pos sibility o f ‘Lega l Tra nspla nts’
[A] comparative study [shjould 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
iden tify and def ine the indi vidua lity 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 W eber 1
§ 1. ‘L eg al Tra nsp lan t’ E xplo red
To ‘transplant’, according to the O xfo rd Eng lish D icti ona ry, is to ‘remove and
repositio n’, to ‘convey or remove elsewhere ’, to ‘transport to another co untry or place
of residence ’. ‘Transplant’ , then, implies displacement. Fo r the lawyer’s purposes, the
transfer is one that occurs across jurisdictions: there is something in a given jurisdicti on
that is no t native to it and that has been brought there from another. What, then, is
being displaced? It is th e ‘legal’ or the ‘law’. But what do we mean by the ‘legal’ o r
the ‘law’? An answer to this question seems imperative if comparatists wish to draw the
line, as I believe their hermeneutical quest f or understanding compels them to do,
between instances o f displacement having law as th eir object and others not having law
as the ir object. Although they tend no t to argue th e point expressly, students of ‘legal
transplant s’ have emphatically embraced the formalist understanding of ‘law’. Thus, die
* Professor o f Comparative Legal Culture, Tilburg University (NL). An early version of this essay was
given a t the University of California, Hastings College of the Law, in Jan uary 1997 .1 am grateful to
Ugo Mattei fo r his kind invitation. I owe Linda Rae Legault for helping me to organize th e argument.
The usua l disclaimer applies.
1. Max W eber, The Ag rar ian Soc iol ogy o f Anci en t Civ ili zati on s, transl. by R.I. Frank (NLB, 1976) at
385 [originally published, in German, in 1909],
MJ 4 (1997) 111
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