An Appraisal of the Influence of Legal Transplant on National Legal Systems

2020 ◽  
Vol 7 (1) ◽  
pp. 89-108
Author(s):  
Mantinkang Formbasso Lawrence
Keyword(s):  
Common Law ◽  
Comparative Law ◽  
Legal Systems ◽  
Legal Transplant ◽  
National Courts ◽  
Foreign Law ◽  
English Speaking ◽  
The Common ◽  
The Impact ◽  
National Legislatures

States may use foreign law for different reasons. Courts can do so when faced with a controversial new issue for which no apparent solution is found under national law. Often countries refer to laws or legal practices of other countries within the same legal family. This is done by Cameroonian courts, especially in the English speaking regions where the common law legal system applies. This paper analyses the impact and legitimacy of the use of foreign law paying particular attention to Cameroon. The analysis will be based on the following sequence: comparative law and national legislatures; comparative law and national courts; voluntary recourse to foreign law in domestic disputes; legitimacy of comparative law influence and reasoning; motives and strategies in valuing foreign law; and the extent to which legal systems are opened to foreign influence. The paper concludes that the Cameroon legal systems (common law and civil law) are highly influenced by legal transplant.

scholarly journals A COMPARISON OF THE COMMON LAW BASED DUTY WITH ITS CIVIL LAW EQUIVALENT

2020 ◽  
Author(s):  
Azamat Omarov ◽  
Asylbek Kultasov ◽  
Kanat Abdilov
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
Case Law ◽  
Legal Systems ◽  
Legal Structure ◽  
Legal Term ◽  
Legal Effect ◽  
The World ◽  
The Common

The article discusses the features of civil law in different countries. The authors studied the origins of the modern tradition of civil law, comparing the legal systems of two European countries. One of the traditional classifications of duties in civil law is analyzed, the conclusion is made about the inappropriateness of the allocation of personal and universal duties. In comparative law, there are many situations where the same legal term has different meanings, or where different legal terms have same legal effect. This confusion most often occurs when civil lawyers have to deal with common law, or vice versa, when common law lawyers deal with civil law issues. While there are many issues which are dealt with in the same way by the civil law and common law systems, there remain also significant differences between these two legal systems related to legal structure, classification, fundamental concepts, terminology, etc. As lawyers know, legal systems in countries around the world generally fall into one of two main categories: common law systems and civil law systems. There are roughly 150 countries that have what can be described as primarily civil law systems, whereas there are about 80 common law countries. The main difference between the two systems is that in common law countries, case law – in the form of published judicial opinions – is of primary importance, whereas in civil law systems, codified statutes predominate.

‘International Law is Part of the Law of the Land’: True or False?

2013 ◽  
Vol 26 (2) ◽  
pp. 351-368 ◽  
Author(s):  
KENNETH KEITH
Keyword(s):  
International Law ◽  
International Institutions ◽  
Legal Systems ◽  
National Courts ◽  
National Institutions ◽  
The Law ◽  
The Impact ◽  
National Legislatures

AbstractThis article addresses the question stated in its title by considering not only the role of national courts but also the roles of national legislatures and executives. That emphasis is called for because most of international law most of the time operates through national, rather than international, institutions and in particular through the executive and the legislature. Before I get to those national institutions, I consider two undisputed propositions of law, the varying characteristics of rules of international law and the impact of those characteristics on different national constitutional and legal systems.

scholarly journals JUDICIAL DISCRETION IN THE DETERMINATION OF POST-DIVORCE CHILD SUPPORT: A BRIEF OVERVIEW OF THE APPLICATION OF THE SOUTH AFRICAN MAINTENANCE ACT 99 OF 1998 AS COMPARED TO THE CANADIAN FEDERAL CHILD SUPPORT GUIDELINES OF 1997

Obiter ◽  
2021 ◽  
Vol 30 (2) ◽  
Author(s):  
Marita Carnelley ◽  
Juanita Easthorpe
Keyword(s):  
South Africa ◽  
South African ◽  
Child Support ◽  
Current System ◽  
Common Law ◽  
Legal Systems ◽  
The South ◽  
The Common ◽  
The Impact ◽  
Support Guidelines

There are various models for determining and allocating child support obligations post-divorce and many different principles upon which such a policy can be based. In most legal systems the parents retain the duty to support their needy children after divorce as it is primarily their obligation to ensure the adequate financial welfare of their children. This principle is applicable in both the South African and Canadian legal systems. In South Africa, in terms of both the common law and legislation, both parents must maintain their children “according to their respective means”. The awarding of a specific amount of maintenance is, however, a complex process calculated by the courts on a case-by-case basis mainly by considering two issues: the needs of the children and the parents’ ability to maintain their children within the circumstances and means of each of the parents. Although both aspects are important in a maintenance enquiry, the focus of this note is on the interpretation of the calculation of the contribution of each of the parents, especially the non-custodial parent. The interpretation of the concept “means” obviously has important consequences for the parties: the broader the interpretation of the “means” of a parent, the higher the proportion of the contribution of that parent would be towards the support of the children. This is especially important in South Africa where a substantial proportion of those who are obligated to pay maintenance is impecunious. The Canadian law rested on similar principles until 1997 when the federal government promulgated the Federal Child Support Guidelines as an amendment to the Divorce Act. The impact of these Guidelines on the calculation of the parental share of post-divorce child support has been far-reaching. The aim of this note is firstly to examine the meaning of the term “means” within the South African legal system as set out in the common law, the various statutes and as these have been interpreted by the majority of courts over the past century. The second aim is to give a brief overview of the Canadian Guidelines and to compare their current system with the South African scenario. The rationale for choosing this jurisdiction is (i) the fact that in both jurisdictions the courts have the ultimate say over the amount of support paid; and (ii) as the Canadian position before their 1997 amendments was similar to the current South Africa system, it was envisaged that by exploring their reasons for change and evaluating their current system, some useful insights might be gained in solving some problems experienced in the South African maintenance system. The note will conclude with some suggestions for reform in South Africa in light of the Canadian experience. 

scholarly journals Comparative Law and its Influence on National Legal Systems

2006 ◽  
pp. 512-538 ◽  
Author(s):  
Jan M. Smits
Keyword(s):  
Constitutional Law ◽  
Critical Evaluation ◽  
Comparative Law ◽  
Private Law ◽  
Legal Systems ◽  
Fourth Section ◽  
Foreign Law ◽  
State Of Affairs ◽  
National Legislatures ◽  
National Systems

This article assesses the scholarly state of affairs regarding the influence of comparative law in national systems. In so doing, emphasis is put on private law and constitutional law, as these are the two areas where comparative inspiration is discussed most vigorously. The second and third section distinguishes several types of use of comparative law by national legislatures and courts, providing the background for a critical evaluation of this influence in the subsequent sections. The fourth section discusses the legitimacy question and the question of how to categorize the different uses of foreign law. The fifth section addresses why a legislature or court actually refers to foreign law and is how to explain the different extent to which countries are open to foreign influence. The last section considers the exact influence of comparative law arguments on the legislature's or court's reasoning.

Comparative Law and the Study of Mixed Legal Systems

2006 ◽  
pp. 476-512 ◽  
Author(s):  
Jacques Du Plessis
Keyword(s):  
Comparative Analysis ◽  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
Legal Systems ◽  
Legal Development ◽  
European Context ◽  
The Common

Legal systems generally are ‘mixed’ in the sense that they have been influenced by a variety of other systems. However, this label traditionally is only attached to those systems which represent a mix between the common law and the civilian tradition. This article focuses on what studies of mixed legal systems reveal about the broader comparative themes of the classification of legal systems, whether and how borrowing can take place, the quality of the law to which borrowing gives rise, the connection between civil law and the common law in the European context, and the role which language can play in comparative analysis and legal development.

scholarly journals Incorporating Local Wisdom Into the Consumer Protection Legal Regime: A Comparison Between Indonesia And Australia

2017 ◽  
Vol 1 (1) ◽  
pp. 31
Author(s):  
I Gusti Ngurah Parikesit Widiatedja
Keyword(s):  
Consumer Protection ◽  
Common Law ◽  
Economic Liberalization ◽  
Legal Services ◽  
Legal Systems ◽  
Legal Regime ◽  
Law System ◽  
Convergence Process ◽  
The Common ◽  
The Impact

Globalization has affected legal services and converged legal systems, especially in consumer protection in Indonesia and Australia. This process has resulted to a more formal, transparent, and adversarial law and regulations that typically reflect to the common Law system. Then,  the incorporation of local wisdom encourages significantly for the receptiveness of this globalization  and convergence process both in Indonesia and Australia. This paper will show and analyze the extent to which globalization has affected consumer protection in Indonesia and Australia by dividing the impact from the result of economic liberalization and political fragmentation. It will then show how the incorporation of local wisdom can accelerate the globalization of legal services and convergence of legal systems on consumer protection in Indonesia and Australia.

Interpretation of Corporate Acquisition Contracts in Japan: A Legal Transplant through Contract Drafting

2021 ◽  
pp. 1-18
Author(s):  
Akio Hoshi
Keyword(s):  
New York ◽  
Common Law ◽  
Comparative Law ◽  
Legal Practice ◽  
Legal Transplant ◽  
The Common ◽  
American Style ◽  
Japanese Law ◽  
Legal Concepts

Abstract This article explores Japanese transactional lawyers’ attempts to transplant American legal practice concerning corporate acquisition contracts into Japan. Despite their extensive efforts to disseminate legal concepts originating from the common law into the Japanese legal community, their transplantation attempts produced somewhat unexpected results by the promoters of the transplant. Faced with unfamiliar drafting styles and legal concepts, Japanese courts interpreted American-style corporate acquisition contracts in accordance with traditional Japanese-style contract interpretation. As a result, attempts by Japanese practitioners at transplantation was incomplete. This incompleteness is attributable to their inattention to the differences in approaches to contract interpretation between Japanese and New York courts. New York's approach is much more formalistic and literal than Japan's. If fully aware, however, they could have filled the gap by using functional substitutes for American techniques of controlling adjudicators’ contract interpretation which would effectively operate under Japanese law. Japan's experience confirms that a widely supported view in comparative law scholarship that transplanted law does not necessarily operate in the recipient jurisdiction as it did in its host jurisdiction is applicable to the transplantation of contract drafting practices.

scholarly journals Comparative Law and its Influence on National Legal Systems

2019 ◽  
pp. 501-523 ◽  
Author(s):  
Jan M. Smits
Keyword(s):  
Constitutional Law ◽  
Critical Evaluation ◽  
Comparative Law ◽  
Private Law ◽  
Legal Systems ◽  
Fourth Section ◽  
Foreign Law ◽  
State Of Affairs ◽  
National Legislatures ◽  
National Systems

This article assesses the scholarly state of affairs regarding the influence of comparative law in national systems. In so doing, emphasis is put on private law and constitutional law, as these are the two areas where comparative inspiration is discussed most vigorously. The second and third section distinguishes several types of use of comparative law by national legislatures and courts, providing the background for a critical evaluation of this influence in the subsequent sections. The fourth section discusses the legitimacy question and the question of how to categorize the different uses of foreign law. The fifth section addresses why a legislature or court actually refers to foreign law and is how to explain the different extent to which countries are open to foreign influence. The last section considers the exact influence of comparative law arguments on the legislature’s or court’s reasoning.

National Legislatures

2018 ◽  
Author(s):  
Kevin L. Cope ◽  
Hooman Movassagh
Keyword(s):  
International Law ◽  
Common Law ◽  
Court Decisions ◽  
Domestic Court ◽  
Comparative Analyses ◽  
Judicial Decisions ◽  
National Courts ◽  
Legislative Branch ◽  
National Legislatures

One critique of some common-law comparative legal academies is their intensively “court-centric” focus, which, some believe, “marginalize[s]” the role of the legislative branch. The same may be said of the extant comparative international law literature: most of it concerns the interpretive approaches of national courts. In fact, one of the field’s seminal pieces characterizes comparative international law as involving “comparative analyses of various domestic court decisions.” Not surprisingly, then, nearly all of this volume’s contributions deal mostly or exclusively with courts and judicial decisions. We agree that courts can play a large part in diversifying how international law works across different systems, but we contend that the foundation of the comparative international law project lies elsewhere. We argue that among the most important and underappreciated interpretative acts—and therefore, those currently most needing study—are the international law interpretations of national legislatures.

Book Reviews, The Common Law Tort of Defamation, and the Suppression of Scholarly Debate

2010 ◽  
Vol 11 (6) ◽  
pp. 656-670
Author(s):  
Kate Sutherland
Keyword(s):  
Academic Freedom ◽  
Common Law ◽  
Scholarly Work ◽  
Academic Journal ◽  
Canadian Law ◽  
The Common ◽  
The Impact ◽  
Defamation Law

Professor Joseph Weiler will soon stand trial for criminal libel in France for refusing to remove a book review from a website associated with an academic journal for which he serves as editor. His case has disturbing implications for all those who write, edit, and publish critical scholarly work. In this article, I explore those implications for Canadian scholars at home and as members of a global scholarly community. I assess the likelihood of success of a similar complaint under Canadian defamation law, and I consider the impact of libel chill and libel tourism. I conclude that although the defendant in such a case would have a good chance of prevailing under Canadian law through the defense of fair comment, a threat to academic freedom remains that requires action on the part of individuals and institutions committed to its preservation and enhancement.

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