Search results for "legal transplant"
showing 8 items of 8 documents
The Theory of Forms Without Substance a Romanian Legal Transplant Theory Ahead of its Time
2020
Abstract Comparative law and legal history show us that law is dynamic, always in continuous development, change, or mutation. This dynamic dimension has become a central concern for the comparative law scholars. The circulation of legal models in the world (e.g. legal transplant, legal transfer, legal borrowing, legal migration) is an evergreen issue. This phenomenon has provoked numerous doctrinal disputes, which have been encapsulated in complex theories on its possibilities and impossibilities. In the present article, we will not explore the many modern theories regarding legal transplantation (or under other metaphors). Instead, we will go back in time, in the second half of the ninete…
The Infra-Constitutionality of European Law in Romania and the Challenges of the Romanian Constitutional Culture
2016
This article deals with European Law as a legal transplant facing the Romanian constitutional culture, in the context of constitutionally limiting the Romanian State’s sovereignty as a member of the EU. Consequently, the reception of the EU law into the Romanian constitutional system (and culture) is determined by two paradoxically divergent Romanian legal-cultural traits: on the one hand, the necessity (bearing accents of national legal pride) to cherish and fructify the Romanian legal (constitutional) traditions, reified, as I shall denominate, as ‘the adapted Romanian law’, and stipulated in the 2003 amended Constitution as a ‘tradition firewall’ / ecran de traditionalite. On the other h…
PLURALISMO JURÍDICO E A DIFUSÃO DOS DIREITOS
2014
The purpose of this essay is to describe how a pluralistic view of law reshapes the current legal discourse. The focus will be particularly on: sources of law, legal families and legal traditions, and legal transplants. While the traditional account based on State law and on a sharp opposition of legal/non legal and official/unofficial law proved to be untrustworthy and oversimplifying, the proposed conceptualization helps to outline the distinction in a more nuanced and realistic way
Legal Transplant as Socio-Cultural Engineering in Modern Romania
2011
Generally, this paper will outline Romanian society’s steps towards (legal) modernization by introducing a peculiar Romanian understanding of what might be called “rational transplant”. A rational transplant includes what Kalman Kulcsar identified as the one society’s “continuous social change by utilizing its own, internal conditions” – recaptured as a compulsory linkage with the legal traditions- and, at the same time, postulating a social and legal change through external factors. In this context, Romanian society would not be weak because it appeals to external sources of inspiration. It would be weak only in not correctly handling the legal transplant. Conversely, Romanian society woul…
Legal Transplants and Economic Development: Common Law vs. Civil Law?
2009
The essay analyzes the phenomenon of legal transplant as instrument to promote and favor economic development, casting a glance to the debate on the choice of the pattern which better suits economic development from a legal perspective.
The Bleeding of Legal Rules between Rights and Limits
2018
This paper, starting from the consideration that modern migratory flows and the enormous circulation of people and rules imply the "dying out" of alien principles and practices on the canvas of the host legal system, wants to ask itself about the "limits" beyond which the host system (and its socio-cultural tradition, or rather its national "spirit") ends up reacting to protect its integrity and within which instead the host system itself welcomes and accepts the "discoloration" or contamination. In a microcomparative way, some aspects of the English, French, Italian and Japanese systems will be compared to evaluate the answers to phenomena of contamination or dying of "alien" rules on the …
The ‘margin of appreciation’ in echr case-law as a boundary line to legal transplants
2015
This study investigates the influence of the European Human Rights Court on State 'margin of appreciation' on the diffusion of accepted or rejected cultural and political choices through the jurisprudence of the case-law. The margin of appreciation is aninterpretative argument, a criterion, a parameter, which allows the Court to preserve rather than censure national State policies and choices on difficult issues which, involving moral and ethical questions, and which do not receive common answers in the ,European legal systems. The work considers some decisions of the Court on abortion, ovum donation, pre-implant embryo analysis and artificial procreation techniques, to find out if, in such…
Brevi note su alcune esperienze di trapianti giuridici in Europa
2016
The research aims to explain and illustrate the legal transplants theory, created by the well-known Scottish jurist Alan Watson, and tries to discover the foundation of its legitimacy in relation with some common law rules. In fact some relevant private law rules, which have been transplanted in more legal systems, will be examined so to underline the different impact of the same rule in different contexts for the deep influence of social, cultural and political factors on the legal principles. Specifically the different impact on legal systems of a particular civil action, the class action, born in Usa and circulated both in civil and in common law countries, will be examined. In the same …