Comparative Constitutional Design and Legal Culture
Studies in Comparative Law and Legal Culture series
Edited by Günter Frankenberg
Chapter 8: Who is afraid of legal transfers?
Who is afraid of legal transfers? While it seems (to a lay outsider) that scholars in comparative law have often feared for (their) laws, legal anthropologists have feared for those who were subjected to them; they have focussed on the relations between different legal orders, their normative effect on each other and on people whose affairs were governed by them. Common to both perspectives on legal transfers is the question about the conflicts of laws, and, implicit in it, the question about a conflict of “culture”. Common to both thus also seems to be a notion of authenticity, and, related to this, a skepticism about change as a divergence from authenticity. If we focus on the fate of laws, that is: their possible transformation along their journeys, we are faced with the question about the “original,” the question how systemic “legal systems” are as well as the question what laws “mean” or what they “are” after their travels. If we explore the effects of traveling law on the social relations of those receiving them, the question about the relation between law and the social arises: in what way does a transfer as such make law different in terms of its effects on the social; what do we mean by a law being “foreign”; what do we assume about law and about its relation to the social if we separate “foreign” from “autochthonous” laws? Is “foreignness” an issue for the social and political effects of law, or rather: for whom is it an issue, when and in what respect?
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