Auto-acculturation of Legal Transplants


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Auto-acculturation of Legal Transplants

  1. 1. Dynamics in (Auto)-acculturation of Legal Transplants By Christo Grozev, IMADEC University, December 2012Legal transplants were first conceptualized in the 1790s by W.A.J Wilson1, who pinpointedthe cross-border and cross-cultural genesis of a substantial body of national law. Watsonexplained it largely with the simple efficiency of borrowing – generally universal – legalconcepts, and maintained that transplantation was the most fertile source of legaldevelopment.The theory of legal transplants was vehemently objected by Pierre Legrand, who counter-argued that Wilson’s position simplistically isolated laws from their semantic and culturalcontext, and assumed that the legal system can exist outside and somehow above thecultural and societal context of a given country, “unencumbered by historical,epistemological, or cultural baggage” 2. Only if such position were to be adopted, Legrandargued, could one assume that “legal rules can travel”. By arguing ad absurdum, Legrandadamantly concluded that legal transplants are impossible.It appears that the conceptual conflict surrounding legal transplants is not so muchfocused on whether or not this phenomenon exists, as not even Legrand has challengedthe observation that cross-border legislative cross-pollination does exist. The controversyhas been largely centered on whether legal transplants are systemic, meaningful andpersistent over time; whether they are optical illusions of similarity – “a meaningless form1 A. Watson, Legal Transplants: An Approach to Comparative Law, Edinburgh, 19742 P. Legrand, The Impossibility of Legal Transplants, 4 Maastricht J. Eur. & Comp. L. 111 (1997)
  2. 2. of words…displaced from one jurisdiction to another” which, however, have been filledwith different doctrinal meaning in different countries in keeping with local culture – or,whenever this has not been possible, are doomed to remain formalistic and ill-suited tothe rest of the local legal culture.Various academic perspectives have been put forward to explain both the existence butalso the boundaries of possibility of legal transplants, including efficiency, “prestige” andnetwork externalities among legal scholars and political elites, and others. A compromiseconcept put forward by the legal realists has been that legal transplants do exist, and arepervasive, but only to the extent that the adoptive cultures are ambivalent or indifferentto the issue that the transplanted norms attempt to tackle. The readiness to adopt, per thispoint of view maintain, stops when the imported norm contradicts important, deeply heldbeliefs and preferences of the adopting culture.But is this necessarily so? This line of reasoning must necessarily assume that the adoptiveculture is itself always firm, un-moldable and persistent over time, and is furthermore notinfluenced at all by its contemporaneous normative context. In other words, that theactive, enforced sets of laws (which may well be transplanted, and may even be ill-suitedand a priori unacculturated to the local cultural context) are not, in and of themselves,part of the local culture. This however, does not appear to be a plausible proposition.There is no readily apparent rationale in excluding laws from the cultural context, as eachnew generation is indoctrinated not only by traditional sets of cultural values passed onby family and broader society, but also by the legal norms and rules which are taught tothem as part of the educational system, or simply picked up along one’s life-path asnecessary, efficient survival rules.
  3. 3. A somewhat different rationale for expecting transplanted laws to become acculturated indue course - regardless of whether or not they fit local culture a priori - can be found ineconomics and management science. Carpenter and Nakamotos experimental work(19893) suggests that initial exposure to a product or service of a particular class influencesthe preference structure of consumers so that it favors “the pioneer” – most notably so insituations in which preferences are ambiguous and attribute importances are not well-formed. Thus, Carpenter and Nakamoto theorized, the product of first exposure functionsas a prototype, shaping future expectations from similar-class products. Although theseempirical observations and theoretical concepts are derived from a different context (ofproducts and services), there is no obvious reason to expect that the economics ofprototypicality should work differently in the realm of exposure – and acceptance – oflegal norms, especially when prior preferences are ambiguous.The above arguments suggest that, at best, Legrand’s argument may hold true during thelifetime of a single generation; but once a “displaced”, as he calls it, legal norm hassurvived long enough in its adoptive home to have become part of the indoctrination of anew generation, it deserves to be termed displaced no more than any traditional valuepassed on by inherited culture – which itself may be completely outdated and ill-suited tothe contemporary context. On the other hand, as long as there are no defined prior“attribute” preferences towards a certain legal norm, its introduction throughtransplantation may be sufficient to make it part of the local culture, aided by thephenomenon of prototypicality.3 GREGORY S. CARPENTER and KENT NAKAMOTO, Consumer Preference Formation and PioneeringAdvantage, 1989
  4. 4. Hypothesis formulationBased on the above, two plausible, related hypotheses may be formulated. First, (a) thatwhen a transplanted legal norm does not contradict an entrenched, strong local norm (i.e.when local attribute preferences are weak), such legal norm becomes a default culturalpreference via its prototypicality status. Second, (b) that when such transplanted legalnorm does run contrary to a strong, incompatible cultural preference, the norm achievesprecedence over the cultural preference over a single generational change.Hypothesis testingTo test these hypothesis, this paper resorted to a meta-analysis of available sociologicaldata spanning a sufficiently long period (8 years) from the European Social Survey project.The ESS is a biennial multi-country survey, sponsored by the European Commission,covering over 30 nations. The first round was fielded in 2002/2003, the fifth in2010/2011. The project is funded by the European Commission, the European ScienceFoundation and academic bodies in each participating country, and is designed andcarried out to exceptionally high standards. The questionnaire includes two main sections,each consisting of approximately 120 items; a core module which remains relativelyconstant from round to round, plus two or more rotating modules, repeated at intervals.The core module aims to monitor change and continuity in a wide range of social variables,including social and public trust; political interest and participation; socio-politicalorientations; governance and efficacy; moral; political and social values; social exclusion,national, ethnic and religious allegiances; well-being; health and security; human values;demographics and socio-economics.
  5. 5. By identifying specific questions in the core model to serve as proxy for societal acceptanceof certain transplanted legal norms, it would be feasible to track whether, and to whatextent, such norms follow the patterns of social diffusion as predicted in the twohypothesis. A period of eight years is not sufficient to provide data on generational changeof acceptance of certain norms, however it is likely to provide at least a directionalconfirmation of the second hypothesis.While no question from the core model was a perfect proxy for a transplanted legal norm,the most suitable one appeared to be a question relating to the (subjective) acceptance ofequal civic rights for gays and lesbians, for the following reasons. For a number ofcountries in the dataset, normative equalization of civic rights between hetero- andhomosexuals, including specific provisions for non-discrimination and the approximationof civil partnership, inheritance and other related rights, has been a recent legislativeinnovation, which in many ways fulfills the role of a transplanted norm (based on acquiscommunautaire, accession agreements or other international legal harmonizationtrends). Appendix 1 lists the status and time of introduction of national legislation relatingto gay and lesbian rights for most European countries.In many of these countries, social acceptance of such innovation has been relatively low.For instance, a 2006 Eurobarometer poll surveying approximately 30,000 people fromthe European Union member states showed split opinion around the 27 states on the issueof same sex marriage. The majority of support came from the Netherlands (82%), Sweden(71%), Denmark (69%), Belgium (62%), Luxembourg (58%), Spain (56%), Finland (54%),Germany (52%) and Czech Republic (52%). All other countries within the EU had below50% support; with Romania (11%), Latvia (12%), Cyprus (14%), Bulgaria (15%), Greece
  6. 6. (15%), Lithuania (17%), Poland (17%) Hungary (18%) and Malta (18%) at the other end ofthe list. Same sex adoption had majority support from only two countries: Netherlands at69% and Sweden at 51% and the least support from Poland and Malta on 7% respectively.Countries with relatively low support for granting equivalence of civil rights betweenheterosexual and homosexual citizens, therefore, could be considered as generallyunsuitable, in Legrand’s terminology, for transplantation of related legislative norms.Even within these countries, however, there might be stark differences in the level of“unsuitability” of such transplants; as certain groups of society are likely to be moreopposed to the “alien” cultural norm than others. Tracking the level of acceptance of thetransplanted norm among these sub-groups with strong preferences would be essentialfor testing our hypothesis. A working assumption was made that the sub-group“respondents with strong religious beliefs” would be more averse to the acceptance of the“gay and lesbian rights” norm; this assumption proved correct in all country cases and wasthus religion was used as an additional proxy for “strong preferences”.To test the hypothesis, we analyzed the changes in the percentage of the population in anumber of countries in Europe which approved, respectively disapproved, of the conceptof providing equal civil rights for the gay and lesbian members of society over an 8 yearperiod. The part of the population with “no specific preference” was left out of theanalysis. Furthermore, we tracked these changes in the (assumed) weak-preference group(non-religious people and in the strong-preference group (religious people). If ourassumption was correct, over the 8-year period, in both the strong- and weak-preferencegroups, the objection to the transplanted norm would subside, and the approval thereof
  7. 7. would increase. At the same time, our expectation was that this shift would be stronger inweak-preference group than in the strong-preference group.Tables 1 and 2, below, display the results for the strong-preference, respectively the weak-preference sub-groups in the analyzed countries.Table 1 Change in acceptance 2002-2010: Strong preference group Filter variable: How religious are you, Mostly Religious Equal rights GL Disagree Agree Disagree Agree Dis. % Agr % 2002 2002 2010 2010 % % Check Belgium 12.2 75.6 12.1 80.0 -0.8% 5.8% OK Switzerland 12.5 75.2 11.5 76.7 -8.0% 2.0% OK Czech Republic 29.7 46.3 24.5 49.6 -17.5% 7.1% OK Germany 18.4 69.4 11.1 79.3 -39.7% 14.3% OK Denmark 8.7 85.6 8.1 86.2 -6.9% 0.7% OK Spain 16.5 57 14.3 70.8 -13.3% 24.2% OK Finland 26.9 58.4 14.6 70.1 -45.7% 20.0% OK France 16.4 69.9 16.4 72.7 0.0% 4.0% OK United Kingdom 16.2 70.1 9.2 78.0 -43.2% 11.3% OK Greece 31 47.5 27.7 46.3 -10.6% -2.5% NOT Hungary 37.2 43.4 29.1 39.3 -21.8% -9.4% NOT Ireland 7.2 79.2 6.1 83.3 -15.3% 5.2% OK Netherlands 6.2 85.5 5.4 88.3 -12.9% 3.3% OK Norway 19.6 66.9 14.9 73.4 -24.0% 9.7% OK Poland 35 40.3 37.4 40.1 6.9% -0.5% NOT Portugal 11.8 67.5 24.7 58.5 109.3% -13.3% NOT Sweden 9.7 76.7 5.6 84.5 -42.3% 10.2% OK Slovenia 34.6 43.5 31.7 49.2 -8.4% 13.1% OKThe results suggest that in the majority of the cases, the hypothesis for (automatic)acculturation of transplanted norms is confirmed. In most of the cases the sub-hypothesisthat the weaker-preference groups are more easily acculturated to the transplanted normis also confirmed. The changes were most meaningful in Finland (disagreementdecreased from 27% to 15%, and agreement went from 58 to 70%), Spain (agreement from57% to 71%, and United Kingdom (disagreement from 16% to 9%).
  8. 8. However, the few cases in which the hypothesis is rejected deserve special attention. Inthe strong-preference (religious) sub-group, the hypothesis doesn’t bear out in Greece,Hungary, Poland and Portugal. Of these four countries, three – except Portugal – had nearparity between “agreement” and “disagreement” with the norm within the sub-group.Actually, other than the Czech Republic, these were the only countries which had less than50% acceptance of the equal rights proposition in 2002. It appears that these sub-groupsin these countries did not change – as predicted - their acceptance of the “transplantednorm”. However, a deeper look into the dynamics of the change in these sub-groups showsthat in Hungary and Greece, the hypothesis is rejected not because the level non-acceptance of the transplanted norm increased (in fact it decreased significantly), butbecause the levels of acceptance decreased as well. What is more, the non-acceptancedecreased at a rate significantly higher than the acceptance decreased. Thus, on averagethe “strong-preference” group in these two countries also shifted towards acceptance ofthe norm, however at the expense of higher polarization inside the group.In the case of Poland, the rate of disagreement with the norm remained static over the 8year period at approximately 40%, while the rate of agreement declined marginally from37% t0 35%. This could be explained by the activist role that the Polish Catholic churchand certain political parties in Poland have taken in the debate against full equal rights togays and lesbians, which may have provided sufficient legitimacy to this position todissuade this sub-group from shifting to the transplanted norm.Portugal appears to be an outlier, as the starting point of opposition to the norm in 2002was very low (12%), yet this percentage doubled by 2008. This phenomenon requiresfurther investigation and cannot be explained on readily available data in this survey.
  9. 9. Table 2: Change in acceptance 2002-2010: weak preference group Filter variables How religious are you, Mostly Not Religious Disagree Agree Disagree Agree Dis. % Agr % 2002 2002 2010 2010 % % Belgium 6.4 84.1 3.7 91.9 -42.2% 9.3% OK Switzerland 7.4 85 5 87.6 -32.4% 3.1% OK Czech Republic 15.4 61.1 11.7 68.7 -24.0% 12.4% OK Germany 10.5 77.1 8.7 83.7 -17.1% 8.6% OK Denmark 4.5 91.2 3.5 91.6 -22.2% 0.4% OK Spain 5.1 77.2 3.6 87.4 -29.4% 13.2% OK Finland 19.3 66.2 8.8 79.5 -54.4% 20.1% OK France 9 83.2 6.9 85.8 -23.3% 3.1% OK United Kingdom 9.5 78.1 4.4 88.1 -53.7% 12.8% OK Greece 14.9 65.7 17.5 62.5 17.4% -4.9% NOT Hungary 26 50.3 21.4 52.8 -17.7% 5.0% OK Ireland 3.5 87.1 6.5 81.2 85.7% -6.8% NOT Netherlands 2.6 91.6 1.2 97.3 -53.8% 6.2% OK Norway 7.9 79.9 4.3 87.4 -45.6% 9.4% OK Poland 21.9 56.9 19.1 62.6 -12.8% 10.0% OK Portugal 7.8 74.7 14.3 71.7 83.3% -4.0% NOT Sweden 5.9 83.4 2.1 92.0 -64.4% 10.3% OKIn the group with the weaker preferences the trends are generally identical, although therate of change in reducing non-acceptance over the eight-year period was higher (anaverage of 17% in this group, compared to 13% for the stronger-preference group).Finland retains its mark as a country with a very meaningful change (reduction by half ofof the non-accepting group, and increase by 20% of the approving group); Spain andFrance show equally noticeable change. Poland no longer runs contrary to the hypothesisin this group – disapproval decreased by 13% and approval increased by 10%. This appearsto support the hypothesis that in the strong-preference group, the lack of similar changehas been fostered by group dynamics inside the Church.
  10. 10. Greece retains its exceptional position of adverse change, while Hungary, in this group,reverses the trend to comply with the hypothesis. Outliers in this group are Ireland andPortugal, both with a low starting point of non-acceptance of the norm in 2002 – 3.5%and 7.8%, in both cases going up to (again, comparatively low) rates of 6.5% and 14%.ConclusionsThe limited meta-analysis presented herein appears to confirm the hypothesis that, ceterisparibus, legal transplants are possible and sustainable, in part due to the fact that oncetransplanted, legal norms achieve protypicality in their own category, and furthermoreover time become part of the same local culture that initially may be largely incompatiblewith them; a phenomenon that may be termed autoacculturation. This holds true bothin cultures of strong (incompatible) preferences and in ones of weak preferences vis-à-visthe transplanted norm, although the rate of change is faster in the latter. Also, as we haveseen from the Polish case, it appears that the rate of autoacculturation is affected not onlyby the starting degree of the adverse preference, but - significantly – by the level ofmobilization of proponents of competing prototypes or norms – as has likely been the casewith the Catholic Church in Poland.While these observations are intuitive and predictable, they provide certain empiricismon the varying rate of autoacculturation of transplanted norms, and generate ideas foradditional research to identify the specific mechanisms of competing factors in adoptionor rejection of legal transplants.
  11. 11. Appendix 1:Status of implementation of equal-rights legislation – EUROPE(