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LEGAL TRANSPLANTS IN LEGISLATION: DEFUSING THE TRAP

Legislative drafters borrow institutions, policy or legal solutions and legislative texts from foreign jurisdictions (national, EU and international) as a means of promoting and developing legislation quickly and effectively. Nonetheless, little attention is paid to established theories of comparative law on the legitimacy of legal transplants and the constraints for drafters’ choices. This creates problems of inapplicability of the transplanted law within the receiving national legal context. In turn, inapplicability leads to failure of the purpose of the transplanted law. Failure of purpose signifies not only collapse of the intended regulation but also wastage of resources in legislating and enforcing an inevitably failing legislation and, perhaps more importantly, the negligent creation of the false or fraudulent impression that the problem is adequately addressed. This article applies the prevailing theories of comparative law to legislative drafting. The aim is to alert drafters to best practice in legal transplants and to provide guidelines on constraints for drafters, thus contributing to effective legislation in developing economies.