Research Handbooks in Comparative Law series
Edited by Pier Giuseppe Monateri
Chapter 9: Contextualizing Legal Transplant: China and Hong Kong
* Chen Lei 1. INTRODUCTION Legal transplant occurs where law travels from one jurisdiction to another by way of transposition, imposition, reception or intended borrowing.1 It is by no means a new phenomenon and has been extensively researched. Long before the publication of Alan Watson’s magisterial book on the historical transposition of Roman laws to Europe,2 China had already been experimenting both with exporting its own law and importing foreign law.3 Since legal transplant inevitably generates the transfer of the normative dimension of the law, it is inextricably linked with the transfer of legal culture. Cotterrell described legal culture as ‘a way of referring to clusters of social phenomena … coexisting in certain social environments and … a convenient concept with which to refer provisionally to a general environment of social practices, traditions, understandings and values in which the law exists’.4 Through this cultural lens, Legrand announced the ‘impossibility of legal transplant’ since ‘what can be displaced from one jurisdiction to another is, literally, a meaningless form of words’.5 Suli echoed Legrand’s view in China by maintaining that ‘native resources’ or ‘local knowledge’ render legal transplant neither necessary nor * This chapter is version 2.0 based on the National Report of Legal Culture and Legal History to the XVIIIth Congress of the International Academy of Comparative Law in Washington DC and an article on the historical development of Chinese private law published by The Legal History Review in 2010. 1 In this chapter I use the traditional term of legal transplant. The alternatives...
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