LIMITS OF LEGAL TRANSPLANTS

Abstract

Often, legal ideas are transplanted between legal systems. This can be seen not only in colonial contexts, as is evidenced by the almost global relevance of ideas that originated in English Common Law, but was also visible in particular during the last centuries when Japan and China imported rules from German criminal and private law, respectively, into their domestic legal systems. One of the best known – and most unusual – features of German private law, concerning the transfer of ownership and the abstraction and separation principles, was in turn also the result of a legal transplantation, albeit a rather imperfect one. Using literature research methods, this text aims to show that transplanting legal norms between societies, while often practical, can at times lead to confusing and unintended, results – in particular when the context in which the norm was created is not fully understood.