‘Cut-and-Paste’? Rule of Law Promotion and Legal Transplants in War to Peace Transitions

Richard Zajac Sannerholm 

Folke Bernadotte Academy; Swedish Institute of International Affairs
February 12, 2013

NEW DIRECTIONS IN COMPARATIVE LAW, Antonina Bakardijeva Engelbrekt, Joakim Nergelius, eds., Edward Elgar, 2010 
Abstract:      
This chapter looks at the process of international rule of law assistance in war to peace transitions from the perspective of legal transplants. Those familiar with the short but dynamic history of international promotion of legal reforms in developing countries (starting with the law and development movement in the 1960s) also know of the intense debate on legal transplants. Stripped to its essentials the debate has centered on the following question: is it possible to transfer laws and legal institutions from one legal culture to another?

Academics and practitioners that answer this question in the affirmative point to the way law travels. The spread of Roman law throughout Europe, or international or transnational commercial law of today, testifies to the possibility of legal transplants. Opponents in the other corner of the ring are often inclined to agree to the fact that law (or legal rules) travel, but then they ask what the effects of substantial legal borrowing is, ‘how does the transplanted law work and function?’ The litmus test is if law, once it has been transplanted, take the same function, role, and appearance as in the country of origin.

There is a need to revive the discussion on legal transplants within the context of war to peace transitions. The reason for this is simply that the process of legal borrowing, transfer and transplant is reaching monumental proportions within international assistance to war-torn societies (see i.e. United Nations Report of the Secretary-General. In these situations, transitional and interim governments face a paradoxical equation. While hard-pressed to break with the past and establish a new normative framework for governance, the weak capacity of interim governments makes the transition impossible. As deus ex machina the international community comes to assist in the legal transformation and state building under the banner of ‘rule of law promotion’.

Number of Pages in PDF File: 23

Keywords: post-conflict, legal transplants, rule of law, judicial reform, justice reform, legal borrowing

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2215566