Elgar Encyclopedia of Comparative Law, Second Edition
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Elgar Encyclopedia of Comparative Law, Second Edition

Edited by Jan M. Smits

Written by leading authorities in their respective fields, the contributions in this accessible book cover and combine not only questions regarding the methodology of comparative law, but also specific areas of law (such as administrative law and criminal law) and specific topics (such as accident compensation and consideration). In addition, the Encyclopedia contains reports on a selected set of countries’ legal systems and, as a whole, presents an overview of the current state of affairs.
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Chapter 44: Legal transplants*

Jörg Fedtke


While dating back to antiquity, ‘free trade in legal ideas’ (Kahn-Freund, 1974, p. 10) has increased dramatically over the past decades; borrowing from another system is today certainly ‘the most common form of legal change’ (Watson, 1991, p. 73). Many factors have contributed to this development. Prominent among them is the demise of Socialism in Eastern Europe towards the end of the 1980s and its various knock-on effects across the globe: the desire of many countries to join the European Union and to develop commercial relationships with the United States; the democratization of societies in parts of Africa and South America; the quest for free trade and internationally harmonized rules for the protection of intellectual property; and the worldwide trend towards greater recognition of human rights and the rule of law. All of this has favoured a spread of legal ideas regardless of political borders or cultural differences. It has also blurred the seemingly neat theoretical distinctions that have traditionally been drawn between various ‘legal families’ by comparatists in the second half of the 20th century – a phenomenon which is currently also beginning to affect the relationship between Islamic law and ‘western’ concepts of criminal, commercial, or family law as a consequence of what has become known as the Arab Spring.

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