Summary
This paper empirically documents the continued importance of the legal families (common law and civil law) for the diffusion of formal legal materials from the core to the periphery, and some possible channels of diffusion, in post-colonial times. This raises the possibility that substantive differences between countries of different families around the world, such as those documented in the legal origins literature, continue to be the result of separate diffusion processes rather than of intrinsic differences between common and civil law. Using the example of corporate and securities law, this paper documents the frequent and often exclusive use of legal materials and models from the respective legal family's core countries in treatises and law reform projects in thirty-two peripheral and semi-peripheral countries. The diffusion of formal legal materials need not imply that the substantive development of law is affected by foreign influences, at least not in ways that induce substantive differences between periphery countries of different legal families.
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Extract
Contemporary Legal Transplants: Legal Families and the Diffusion of (Corporate) Law
INTRODUCTION ....................................................................... 1814
I. EVIDENCE OF FORMAL DIFFUSION ....................................... 1823A. Methodological considerations ................................... 18231. Scope of inquiry ................................................... 18242. Validity of inquiry ................................................ 1827B.Data ........................................................................... 18301. The Common law family ...................................... 1830a. Treatises .......................................................... 1831b. Statutes ........................................................... 18332. The French legal family ........................................ 1837a. Africa and the Middle East .............................. 1838b. Latin America ................................................. 1839II. DIFFUSION CHANNELS ........................................................ 1844A. Legal Cooperation and Development Aid ................... 1845B. Student Migration ...................................................... 1849III. MAKING SENSE OF FORMAL DIFFUSION ............................. 1852A. Formal Diffusion in General ....................................... 18531. Dimensions of the relationship between foreign models and domestic law .................................... 18532. Plausibility of different scenarios ........................... 1855B. Role of Legal Families ................................................ 1860IV. FORMAL EVIDENCE? ........................................................... 1867A. Data Problems ........................................................... 1867B. Further Tests of Diffusion Theories' Predictions ......... 1869C. Distinguishing Diffusion from Structural Theories ..... 1872V. CONCLUSION: IMPLICATIONS FOR THE ROLE OF LEGAL FAMILIES IN COMPARATIVE LAW .................................... 1876INTRODUCTIONContemporary knowledge on comparative legal systems is strangely bifurcated. On the one hand, some of the most sophisticated comparative lawyers assert that there are few if any relevant differences between common and civil law today, judging by key characteristics of the legal system, such as case law versus statutory law, the systematization of the law, or the lasting influence of Roman law, which are the traditional markers of the common/civil law distinction.1 On the other hand, a very influential literature in economics - known as the "legal origins literature" - claims that empirically, the substantive rules in areas of economic policy ranging from investor protection to military conscription differ systematically between common and civil law countries.2How can this bifurcation be explained? One possibility is that one of the two views is, in fact, incorrect. The economists' correlations between legal families and substantive rules and outcomes might be spurious - their measures of law might be incorrect conceptually or factually, and the true drivers of any existing differences might be other factors that just happen to be correlated with the legal families.3 Or the comparative lawyers might have overstated the degree of convergence, perhaps by focusing on the wrong aspects of the legal system.This paper suggests another possibility that would reconcile the economists' and the comparative lawyers' views: diffusion of law along legal family lines. Policy solutions developed in the core countries of Western Europe (and North America) may spread to the periphery and semi-periphery countries of their respective legal families by imitation, economic pressure, or otherwise.4 This need not happen instantaneously or perfectly. But when the periphery countries do change their law, they may look to their legal family's core countries for guidance, and in so doing partake of some of the particularities of those core countries' regulation. This would create policy similarities within legal families as observed by the economists, even if there are no important intrinsic differences between common and civil law today, as asserted by the comparativists. In other words, this paper provides an explanation for legal differences between legal families that does not rely on anything in the "nature" of "the common law" and "the civil law," respectively. Conversely, the arguments of this paper imply that observed differences of positive law between countries of different legal families do not by themselves constitute evidence of deeper differences between "the common law" and "the civil law."Diffusion of law has been an important topic in comparative law at least since the publication of Alan Watson's seminal book on "Legal Transplants" in 1974.5 The very existence of legal families spanning the globe is due...See the full content of this document
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