Comparative Law Approach 29

Amicus curiae procedure was internationalized from England to the European Court of Human Rights. The Court was the first international tribunal to allow amicus participation by individuals and organizations. Comparative law scholarship on legal transplants studies the diffusion of legal institutions across states. Although this dissertation is concerned with the movement of legal institutions from the nation-state to an international organization, some of the concepts and ideas from legal transplants scholarship are still pertinent. For instance, as discussed below, legal transplants scholarship discusses the role of private actors in the transplantation of legal institutions. It also highlights the reasons why legal institutions are adopted.

The expression “legal transplant” signifies “the moving of a rule or a system of law from one country to another or from one people to another.”91 Legal transplants have been traced back to the Code of Hammurabi in the 17th century BC.92 The concept of legal transplants was advanced and popularized by Alan Watson.93 In the 1990s, legal transplants had become the main object of study of comparative law scholarship.94

90 _{Walter Mattli and Anne-Marie Slaughter, Constructing the European Community System from the}

Gound Up: the Role of Individual Litigants and National Courts, Jean Monnet Working Paper, June

1996 http://centers.law.nyu.edu/jeanmonnet/papers/96/9606ind.html

91 _{ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW, 21 (2}nd _{ED. 1993).} 92 _{Id. at 22-24.}

93 _{ALAN WATSON, THE EVOLUTION OF LAW (1989); ALAN WATSON, SOCIETY AND LEGAL CHANGE} (1977); Alan Watson, Aspects of Reception of Law, 44 AM. J. COMP. L. 335 (1991); ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW (2nd _{ED. 1993).}

94 _{Ugo Mattei, Why the Wind Changed: Intellectual Leadership in Western Law, 42 AM. J. COMP. L.} 195, 196, (1994).

The legal transplants literature has been classified in a number of ways. Maximo Langer delineates two main schools of thought on legal transplants. One school explores “the common issues, processes, and incentives” that drive the process of the transferring of rules.95 The other school of thought emphasizes the geographic horizontal dimension of legal transplants and studies the processes of legal transplants from central to peripheral countries.96

John Gillespie points out the contributions that the legal evolutionary theory, legal autonomy theories, sociological scholarship on Law and Globalization, and systems theories have made to the scholarship on legal transplants. He suggests a discourse analysis as a methodology for studying legal transfers.97

Ugo Mattei describes the contributions to the legal transplants scholarship from the common law and civil law perspectives.98 In a different piece, Mattei critiques the taxonomy of scholarship on legal transplants. According to Mattei, scholarship on transplants traditionally distinguishes between two patterns. The first pattern focuses on “[l]aw as dominance without hegemony.” This scholarship focuses on the spread of legal institutions as parts of coercive apparatus without domestic consent. The other strand emphasizes the role of consent by recipients and the influence of prestige in this process.99

Early comparative law scholarship understood legal transplants in a positivist sense, including legislation, institutions, principles, and doctrines.100 Positivism, as opposed to other schools of thought, such as legal pluralism, understands law as the

95 _{Maximo Langer, Revolution in Latin American Criminal Procedure: Diffusion of Legal Ideas from}

the Periphery, 55 AM. J. COMP. L. 617, 622 (2007). 96 _Id.

97 _{John Gillespie, Towards a Discursive Analysis of Legal Transfers into Developing East Asia, 40} N.Y.U. J. INT’L L. & POL. 657 (2007-2008).

98 _{Ugo Mattei, Why the Wind Changed: Intellectual Leadership in Western Law, 42 AM. J. COMP. L. 195} (1994).

99 _{Ugo Mattei, A Theory of Imperial Law: A Study on U.S. Hegemony and the Latin Resistance, 383} IND. J. GLOBAL LEGAL STUD.385 (2003).

creation of the State.101 A notable exception, which moves beyond focusing only on the positive law diffusion between countries, is legal pluralism.102 Legal pluralism perceives law as a plural structure, which consists of three levels of law—official law, unofficial law, and legal postulates.103 Commentators who share this fundamental assumption about the nature of law elaborate how the transplanted law is shaped through the interaction of the “official law” with local customs, unwritten rules, and cultural paradigms. For instance, in his account of the reception of Chinese and Japanese law, Masaji Chiba elaborates on the fusion of indigenous Japanese law with received law and highlights how some elements of the former were maintained in the “official law” of Japan—the only kind of law that Japan officially recognizes.104 However, the sections below outline the main terms and approaches that have been expressed in relation to the study of legal transplants in the positivist sense. These are the approaches which are most directly relevant to our study of the establishment of juries in Georgia.

Scholars have used a number of different terms to describe various processes of legal transplantation. Terms such as diffusion, export, transfer, and translation have been coined. In relation to terminology, however, Alan Watson maintains,

[. . .] receptions and transplants come in all shapes and sizes. One might think also of an imposed reception, solicited imposition, penetration, infiltration, crypto-reception, inoculation and so on, and it would be perfectly possible to distinguish these and classify them systematically. [. . .] There is no point in

101 _{Rodolfo Sacco, Legal Formants: A Dynamic Approach to Comparative Law, 39 AM. J. COMP. L. 1, 7} (1991) (arguing, inter alia, that Positivism, through which stateless peoples written language were denied the ability to have laws, is a byproduct of the European Eurocentrism).

102 _{Guenther Teubner, The Two Faces of Janus: Rethinking Legal Pluralism, 13 CARDOZO LAW} REV.1443 (1992); Guenther Teubner, Global Bukowina: Legal Pluralism in World Society in GLOBAL LAW WITHOUT THE STATE 29 (GUNTHER TEUBNER ED.1996); DAVID NELKEN AND JOHANNES FEEST (EDS.) ADAPTING LEGAL CULTURES (2001).

103 _{Masaji Chiba, Introduction in ASIAN INDIGENOUS LAW IN INTERACTION WITH RECEIVED LAW, 4-5} (MASAJI CHIBA ED.1986).

elaborating a details classification of borrowing until individual instances have been examined to see what they reveal.105

Nevertheless, different expressions indicate the authors’ different approaches to a number of issues, including the relationship between the structure and agency,106 and law’s relationship to society. Below I focus on the main debates concerning five concepts: legal transplants, imposed law, translation and transposition, reception, and the Americanization thesis.