An Integrated Model of Legal Transplantation: The Diffusion of Intellectual Property Law in Developing Countries

Abstract

Why do some countries adopt exogenous rules into their domestic law when those rules contravene their specific interests? We draw on the policy-diffusion literature to identify four causal mechanisms that we hypothesize explain the adoption of such rules. While existing literature treats these mechanisms as independent, we argue that each works in combination with the others to facilitate legal transplantation. While one mechanism—coercion—tends to initiate the transplantation process, it fades over time and three others largely supplant it: contractualization, socialization, and regulatory competition. These mechanisms act in a mutually supportive manner. We test our claims via a quantitative analysis of legal transplants in the field of intellectual property (IP) that incorporates an original index of IP protection in 121 developing countries over more than 14 years. This article concludes with a plea for theoretical eclecticism, acknowledging multicausality and context-conditionality. Any comprehensive explanation of legal transplantation must include the identification of mutual reinforcement between causal mechanisms, rather than simply rank their relative contributions. “[Laws] should be so specific to the people for whom they are made, that it is a great coincidence if those of one nation can suit another” argued Montesquieu in The Spirit of the Laws (1961:295). Apparently, history is full of coincidence. Laws frequently travel across both time and space. Sections of the Code of Hammurabi, enforced in Babylonia four thousand years ago, were integrated into Persian law, made their way into Greek law, and were subsequently incorporated into Roman law (Watson 1974:22–23). The Roman legacy then inspired the European Civil Codes that include elements of the ancient text. More recently, the European Codes have served as models for legal reform in countries as diverse as Peru, Egypt, and Japan. Legal transplantation proves particularly puzzling in situations of asymmetric interests: Those in which the interests of the adopting state conflict with those of the state in which the rule originated. Why would a country adopt foreign rules that run counter to its own interests? Existing scholarship lacks adequate answers to this question. This article argues that the explanation for legal transplantation lies not in any single causal mechanism but in the succession and reinforcement of multiple mechanisms. In making this claim, we favor analytical eclecticism and answer the call of Sil and Katzenstein for “complex causal stories that forgo parsimony in order to capture the interactions among different types of causal mechanisms normally analyzed in isolation from each other within separate research traditions” (2010:412). The article proceeds in three main sections. The first draws upon legal and political scholarship to build a typology of causal mechanisms for legal transplantation. It intro