Mindy Chen-Wishart's "Legal Transplant of Undue Influence: Lost in Translation or a Working Misunderstanding?" has appeared on SSRN:
Is legal transplant possible? The stark bipolarity of a ‘yes’ or ‘no’ answer
attracted by such a question is much less interesting and revealing than the
question: what shapes the life of legal transplants? The answer to the latter
question is contingent on a wide range of variables triggered by the particular
transplant; the result can occupy any point along the spectrum from faithful
replication to outright rejection. This case study of the transplant of the
English doctrine of undue influence into Singaporean law asks why the
Singaporean courts have applied the doctrine in family guarantee cases to such
divergent effect, when they profess to apply the same law. The answer owes less
to grand theories than to a careful examination of the nature of the
transplanted law and the relationship between the formal and informal legal
orders of the originating and the recipient society raised by the particular
transplant.
The Centre for Comparative Law in Africa, headed by our own Salvatore Mancuso, has announced both their latest newsletter and a new journal:
The Journal of Comparative Law in Africa is a peer-reviewed annual academic legal journal founded in 2013 and published by the Centre for Comparative Law in Africa, at the University of Cape Town (South Africa).
We invite scholars and jurists to submit manuscripts of original articles for possible publication in any then-current issue of the Journal by 31 July for the November issue.
For further details go to Call for papers on the link below
http://www.comparativelaw.uct.ac.za/
Our Gianluca
Parolin has posted his
(Re)Arrangement of State/Islam Relations in Egypt’s Constitutional Transition on SSRN:
After briefly
framing state/shari‘ah relations in pre-2011 Egypt, the paper (1) describes the
negotiations behind the (re)arrangement of shari‘ah-provisions in the new
constitution, (2) analyzes the content of the new provisions in their Hegelian
relation to the previous Supreme Constitutional Court jurisprudence — expounding
on the complex articulation of the explanatory note to art. 2 (art. 219) — and
(c) considers the ramifications of the new arrangement, focusing on the impact
of the mandatory referral to al-Azhar.
Our own Colin Picker has just published 'Comparative legal cultural analyses of international economic law: a new methodological approach' in the new Chinese Journal of Comparative Law.
The abstract reads:
The effective development and operation of the law faces many obstacles. Among the more intractable yet hidden barriers to the law are legal cultural disconnects and discontinuities. These occur when opposing legal cultural characteristics from different legal cultures are forced to interact as part of the implementation of the law across two different legal cultures. This conflictual interaction can impede or block the success of that law. While present in domestic legal systems, these conflicts are more likely, and may be deeper, between the many different legal cultures involved in the international legal order. Identification of such legal cultural disconnects and discontinuities is the first step towards developing strategies to ameliorate potential conflicts between opposing legal cultural characteristics. This identification requires the examination of the relevant legal systems with legal culture in mind—a legal cultural analysis. However, this methodology is rarely employed. To the extent that we do see legal cultural analyses, they are applied almost exclusively in the domestic arena. When it is applied across legal systems, it becomes a part of comparative law methodology. This merger of comparative law and legal cultural approaches is unusual, indeed almost unheard of in the international legal arena. This article explores this methodology and argues that it is possible and valuable.
Note, too, Randall Peerenboom's 'Toward a methodology for successful legal transplants':
The results of many reform projects focused on the substance of legal transplants, which have prescribed particular laws, practices, or institutions, concepts, norms, and attitudes, have been disappointing. The lacklustre results have called attention to the need to develop a workable methodology for legal reforms, focusing on the processes of reform. One of the shortcomings of the current rule of law promotion programs is that they tend to prescribe a common set of ‘best practices’ for all countries. Relatively little work has been done to differentiate developing countries and develop categories or ideal types based on the types of challenges they face. Accordingly, this article lays the groundwork for a methodology of legal reforms based on differential analysis by distinguishing between three ‘exceptional cases,’ including failed states, post-conflict states, and transitional states, as well as between low-income countries and middle-income countries, and it develops a preliminary methodological framework for assessing legal reforms and legal transplants.
