Legal Transplants and Economic Development: Civil Law Vs. Common Law?

Abstract

Law is never static; it changes without any stop. Changes can go in different directions according to the pressures that determine them. Such pressures can be from different sources that are usually identified by social needs for specific changes. A detailed explanation of the reasons for the changes in legal norms is given by the historical and social analysis proposed by Marxist authors. Law changes because of economic pushes, and in social realities characterized by class rivalries, variations would be due to the dialectic interaction between the contrasting impulses coming from the different classes. Any change in the class relations is accompanied by legal changes (Humphries 1983, p. 237). It is, anyway, undoubted that there are sets of rules for which social changes or revolutions are completely irrelevant. Anyone can easily draw different examples: traffic regulations; rules related to the technical requisites to manufacture pharmaceutical products; legal techniques to protect private property against the interference of third parties; and necessity of punishment of specific crimes (homicide, theft) are all rules unaffected by social revolutions. All these and other sets of norms remain unaltered through such changes not only because some values stand up to revolutions, but mainly because they do not necessarily depend on a specific value, ideology, class, or economic pressure, being a group of norms of which many are independent from specific values (Sacco 1999). Besides, scholars coming from the socialist doctrine recognized that some rules remain unaffected by the socialist revolution due to the value on which the particular norm is founded. Where the economic basis of a society is strictly linked with