Law as Transposition

Abstract

Legal scholars approach law in many ways. They are dedicated to various trends such as ‘law as rules’, ‘law as system’, ‘law as culture’, ‘law as tradition’, ‘law as social fact’, ‘law in context’, ‘law and history’, ‘law and economics’, and ‘law and legal theory’. Most comparative lawyers also are aligned to these trends. Some of the trends share belief in the reality of mobility of law, seeing law reform to be partly related to choice from pools of models supplied from a number of legal systems. There is, however, disquiet as to the appropriateness of the phenomenon of ‘legal transplants’ as the predominant explanation of law reform. The disquiet is related both to this mode of law reform and to the conceptual frame suggested by the terminology. It is said that law reform should be from within, and that since a transplanted institution continues to live on in its old habitat as well as having been moved to a new one, the choice of the word ‘transplant’ is inappropriate.1