By Chance and Prestige: Legal Transplants in Russia and Eastern Europe

Abstract

GIANMARIA AJANi is Professor of Private Comparative Law, University of Trento, Faculty of Law. Director of the Department of Law, University of Trento. I wish to thank James Gordley, Professor of Law at the University of California, Berkeley, and Ugo Mattei, Professor of Law at the Universities of Trento and California at Hastings, for their helpful comments. Research for this paper has been done at the University of California, Berkeley and San Diego, and at the University of Leiden, in Netherlands. 1. This article deals with the fact of a widespread borrowing of legal models in post-Soviet States and Central and Eastern Europe; it also raises some questions on the effects of that borrowing. In order not to lose the focus of this study, I have not entered the terminological debate on the meaning of current notions used to explain legal change. circulation, influence, are used here as words that refer to the same phenomenon: a wide supply of scholarly and statutory legal models to post-socialist legislators. This is not to say that I do not consider the difference between a set of more general terms (such as borrowing, or influence) that indicate the process of legal change, and narrower concepts (such as legal transplants, or reception), that refer to the result of a circulation. A second note is related to the aptitude of the new models to match the needs of post-socialist societies. Here I am simply casting some doubts on the consistency between the contents of new models supplied by foreign institutions and the needs of the post-socialist economies. Further research on the implementation of the borrowing, as well as on the role of legal professions in the application of new solutions, will help us to understand the capacity and the significance of legal reforms in post-Soviet states and Central and Eastern Europe. On terminology see Wise, The Transplant of Legal Patterns, 38 Am. J. Comp. L. 1 (1990 Supp.). Following Wolfgang Wiegand: It is possible to differentiate between transfer, transplantation, importation and reception. A closer observation, however, reveals that such terminology does not adequately describe or explain the effective procedure of The Reception of American Law in Europe, 39 Am. J. Comp. L. 229, at 236, fi. 14 (1991). Alan Watson has noticed that: Actually, 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. [Watson suggests that there is] no point in elaborating a detailed classification of borrowing until individual instances have been examined to see what they reveal. Legal Transplants. An Approach to Comparative Law at 30 (1974).