Legal Transplants as Cultural Evolution: The Doctrine of Assignment of Contract in Italy and Japan

Abstract

This presentation examines the transplant of the legal doctrine of assignment of contract in the Japanese legal system as a case of cultural evolution. Its main objective is to examine how the existing legal literature on legal transplants can be re-evaluated in the theoretical framework of cultural evolution. This presentation will be mainly based on qualitative analysis of legal and doctrinal sources of the legal systems involved, and on a general review of the comparative legal scholarship on legal transplants and legal evolution. This presentation rejects an essentialist vision of legal culture, according to which legal evolution occurs only in stages and legal transplants can happen only between legal cultures which share a common tradition. Instead, this presentation shows that legal transplants are possible despite hurdles such as differences in language, culture and geography. It also reveals that legal transplants involving highly technical legal doctrines without political coloration, such as the doctrine of assignment of contract, can occur without any decisive relationship to legal culture. Based on these findings, this presentation strongly suggests that legal transplants should be studied as typical cases of cultural evolution.