Legal Transplants: An Approach To Comparative Law Alan Watson |WORK|
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When it was first published in 1974, Legal Transplants sparked both praise and outrage. Alan Watson's argument challenges the long-prevailing notion that a close connection exists between the law and the society in which it operates. His main thesis is that a society's laws do not usually develop as a logical outgrowth of its own experience. Instead, he contends, the laws of one society are primarily borrowed from other societies; therefore, most law operates in a society very different from the one for which it was originally created. Utilizing a wealth of primary sources, Watson illustrates his argument with examples ranging from the ancient Near East, ancient Rome, early modern Europe, Puritan New England, and modern New Zealand. The resulting picture of the law's surprising longevity and acceptance in foreign conditions carries important implications for legal historians and sociologists. The law cannot be used as a tool to understand society, Watson believes, without a careful consideration of legal transplants.
This chapter examines the core of Alan Watson's influential approach to comparative law - his theses about transplantation of law between legal systems. It argues that the law-and-community approach allows a nuanced, realistic analysis of the possibilities of successful legal transplants. The chapter suggests that how success here should be understood. It takes as its departure point some provocative ideas about the relation of sociology of law to comparative legal studies. The chapter criticizes the problematic William Ewald and Alan Watson set up for relations between comparative law and legal sociology. It suggests a new conceptual framework for that interaction. Professional relationships may be dominated by an instrumental rather than traditional type of community as lawyers jostle for new markets for services and ally themselves with particular interest groups. Conflicts over law are often conflicts between expressions of instrumental, affective or traditional community or community of belief, or between social groups. d2c66b5586
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