Chapter 5: ‘Cut-and-Paste’? Rule of Law Promotion and Legal Transplants in War to Peace Transitions
Richard Zajac Sannerholm I. PLACING THE TRANSPLANT DEBATE IN THE CONTEXT OF WAR TO PEACE TRANSITIONS This chapter looks at the process of international rule of law assistance in war to peace transitions from the perspective of legal transplants. Those familiar with the short but dynamic history of international promotion of legal reforms in developing countries (starting with the law and development movement in the 1960s) also know of the intense debate on legal transplants.1 Stripped to its essentials the debate has centred on the following question: is it possible to transfer laws and legal institutions from one legal culture to another? Academics and practitioners who answer this question in the affirmative point to the way law travels. The spread of Roman law throughout Europe, or international or transnational commercial law of today, testifies to the possibility of legal transplants (Markovits, 2004: 95). Opponents in the other corner of the ring are often inclined to agree to the fact that law (or legal rules) travel, but then they ask what the effects of substantial legal borrowing is, ‘how does the transplanted law work and function?’ The litmus test is if law, once it has been transplanted, takes the same function, role, and appearance as in the country of origin (Gillespie, 2006: 18). There is a need to revive the discussion on legal transplants within the context of war to peace transitions. The reason for this is simply that the process of legal borrowing, transfer and transplant is reaching monumental...
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