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Sannerholm, Richard Zajac --- "‘Cut-and-Paste’? Rule of Law Promotion and Legal Transplants in War to Peace Transitions" [2010] ELECD 116; in Bakardjieva Engelbrekt, Antonina; Nergelius, Joakim (eds), "New Directions in Comparative Law" (Edward Elgar Publishing, 2010)

Book Title: New Directions in Comparative Law

Editor(s): Bakardjieva Engelbrekt, Antonina; Nergelius, Joakim

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848443181

Section: Chapter 5

Section Title: ‘Cut-and-Paste’? Rule of Law Promotion and Legal Transplants in War to Peace Transitions

Author(s): Sannerholm, Richard Zajac

Number of pages: 23

Extract:

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 possi-
bility 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 ...