Legal Transplants Term Paper

Pages: 4 (1318 words)  ·  Bibliography Sources: 10  ·  File: .docx  ·  Topic: Business - Law

SAMPLE EXCERPT . . .

" (p.10) According to Oguz this adoption should be held as a "continuing, living social process from the adoption point forward." (p.10-11) Oguz reports that soon following the Swiss Code being passed, "the law of obligations, commercial law, regulations, and laws of judgment and execution were passed and Turkey became a member of the western legal family." (2005, p.10) It is stated however, that it would take time for the legislative law to be adopted as the law of Turkey. While it was expected by the legislature that the judges in Turkey would use the theoretical background and flexibility of the Swiss code" and that this would morph into a national legal system difficulties arose in application of the law and noted as the first of difficulties with interpreting the language of the Turkish Code. (Oguz, 2005, paraphrased) The method used was a conceptual rather than literal interpretation of the code and it is reported that the primary responsibility of the new legal system adaptation was assigned to students pursuing theory and legal education resulting the accomplishment of this mission in what is described as a "a step-by-step manner." (Oguz, 2005, p.12)

II. China

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The word transplantation in the Chinese language has two primary meanings: (1) grafting, which "in a botanical sense, refers to botanical transplantation; and (2) technological transplantation, which refers to a particular organ or body part of human beings. (Dai, 2009, p. 1) However, in regards to legal transplantation there are reported to be a diversity of views that exist and one being that legal transplantation is "followed by the identification, recognition, adaptation, integration, based on the introduction, absorption, adoption, uptake, assimilation of foreign law (including the legal concepts, technology, norms, principles, systems and legal concepts, etc.)." (Dai, 2009, p.1)

TOPIC: Term Paper on Legal Transplants the Objective of Assignment

The work of Arlanwosen, a British legal history scholar writes that legal transplantation means "a transition of legal systems from one country to another country, or from one family to another family." ( p. ) It is reported that the constitutional framework which was published in 1908 provided the "rights and obligations of citizenship" which are stated to be "subject to the principle of all speeches, all press, all assembly, all association, all quasi, are all free." (Dai, 2009, p.1) By 1911 the Constitutions was already immersed into the emperor's creed and by the end of the Qing Dynasty, "legal transplantation was related to the structure of the bourgeois, the penalty system, probation, parole, timeliness and principle of statutory crimes." (Dai, 2009, p.1) Legal transplantation has enriched the legal culture of China.

Summary and Conclusion

Legal transplantation is the rendering of cultural, societal and religious beliefs into a cohesion with the legal system of a country. In the country of Turkey, this process is met with inflexibility but with dodged determination to apply the Swiss Code to Turkish legal matters, however, in the country of China the process was much smoother. This is because the entire legal system is somewhat transplanted or formulated from influences outside of the Chinese legal system and as such is a legal system that is highly conducive to transplantation and ultimately application of the legal principles contained in the transplanted law. This is also known as diffusion of law involving the socialization of laws imported from a separate geographical space and transportation of the law from one geographical location to the other.

Bibliography

Dai, J. (2009) On Several Problems in Legal Transplantation. Journal of Politics and Law, Sept. 2009. Vol. 2, No. 3.

Gunderson, JL and Waelde, TW (1994) Legislative Reform In Transition Economies: Western Transplants -- a Short-Cut to Social Market Economy Status? ICQL 1994, 43(2), 347-378.

Oguz, A. (2005) The Role of Comparative Law in the Development of Turkish Civil Law. Pace International Law Review. 1 Sept 2005. Article 9. Vol. 17, Issue 2. Fall 2008.

Orucu, E. (2008) Judicial Navigation As Official Law Meets Culture in Turkey. Int J.L.C. 2008, 4(1),… [END OF PREVIEW] . . . READ MORE

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