The Localization Of Foreign Law

There is an inevitable trend to legal convergence and integration among national states in the world under the background of globalization. At the same time, legal transplants have become the main means of legal convergence and integration. On the one hand, globalization makes legal transplants necessary. On the other hand, it brings dilemmas for legal transplants. This paper considers them as the dilemma between legal transplants and the exclusiveness of cultural diversity, and the dilemma between statute law and"living law". The localization of foreign law is presented under this background. This paper thinks the localization of foreign law as a significant approach to solve the dilemma of legal transplants under the background of globalization. The full text is divided into three major parts altogether.PartⅠilluminates the necessity of the localization of foreign law.Globalization accelerates the trend that the law converges and integrates among all national states in the world. At the same time, it also makes dilemma of legal transplants stand out. Thus the localization of foreign law is presented as a solution to this dilemma. First of all, this paper begins with the debate between"doctrine of local resources"and"doctrine of legal transplants". By analyzing the two views, this paper concludes that whether legal transplants succeed largely depends upon the valid combination local resources and foreign resources. In the next place, this paper discusses the relations between globalization and legal transplants. Globalization as an objective process seems a"double-edged sword"which plays double parts, both positive and negative, in legal transplants. On the one hand, globalization makes legal transplants become more frequent and more important. On the other hand, the diversity under the background of globalization stands out differences among regions, thus it brings more complicated dilemmas for legal transplants. Finally, this paper analyzes the specific dilemmas which legal transplants are confronted. There are two dilemmas in the process of legal transplants: one is the dilemma between legal transplants and the exclusiveness of cultural diversity, the other is the intension between the statute law and"living law". Therefore, the localization of foreign law which undertakes the responsibilities for solving these dilemmas is presented under this background.PartⅡis general exposition of the localization of foreign law.This part defines and claries localization firstly."Localization"refers to a process in which a legal institution combines itself with local factors such as economy in its growing course, politics and culture, thus it accords with the needs of social development. There are two usages of this term in China. One refers to a process that the development of law excludes all non-local factors in a country. The other means that foreign legal civilization is transformed into local legal civilization. In this paper, the localization of foreign law adopts the latter. Secondly, this part analyzes the relations between globalization and localization. Judging from the literal sense, it seems that the two are incompatible, but in fact, they are uniform. Globalization is a process that is full of internal contradiction in essence. It is not only internationalization, but also localization, in other words, it's the integration. Therefore, there isn't incompatible contradiction between globalization and localization. Finally, this part points out that localization is the process of integration of foreign laws and local society. It is by way of this process that the gap between foreign laws and local resources will be reduced, the intension will be eased off, and foreign laws can be accepted by local society. This paper believes these are the bases that the localization of foreign law can resolve the dilemmas in the course of legal transplants.PartⅢillustrates the specific operations of the localization of foreign law.The process of the localization of foreign law includes several stages which are connected with each other tightly as follows: firstly, in order to makes it accord with local values–that is to say, accepted by local people, it is necessary to adapt the values which consist in foreign laws transplanted. The premise by which the localization of foreign laws succeeds is the same fundamental values. The crucial foundation of value adjustment is not only to understand the local resources in China, but also to cognize the foreign value traits precisely.Secondly, our legislation should not transplant overall foreign laws without selection. In contrast, we should select those which fit in with the needs of our national conditions. Concretely speaking, there are several considerations that should be taken into account in the procedure of legislation. The first consideration is the careful considerations of local legal resources. In other words, the process of localization should not disregard our"roots". The second consideration is conceptions. In view of the fact that the selection involves in competitions among different legal concepts in the process of legislation, the conceptions shouldn't be disregard. The third consideration is predictability. Legislation should seize the mature opportunities which are not hasty and imprudent. In the same time, the other consideration is the function which the law will exert now and tomorrow. The fourth consideration is the costs of transplants. In brief, the costs of legal transplants should be affordable to local people.Thirdly, the operation of foreign laws should be integrated and coordinate. The process of localization is dynamic. It's a process in which foreign laws communicate and merge with local legal customs in daily life in the local circumstances. Consequently, foreign laws can be accepted by local people and play parts in the process of regulating people's behaviors. In effect, this process illuminates how foreign laws get along with and integrate with local laws.Fourthly, we should examine the effects that foreign laws have played in the local circumstances, because by examining we can know the effects are well or not. Through examining, we should retain those which operate well and suit for local social development, and eliminate those which don't suit for local laws. Such questions as follows should be taking seriously in this process: firstly, the costs of legislation should make the largest profits at the lowest expenses. Secondly, the process of examination should bear"more haste, less speed"in mind. Thus we should not evaluate foreign laws before a mature condition. Thirdly, we should adopt a reasonable and certain test, that is to say we should examine and evaluate according to the factual situations in importing country rather than the standard in the exporting country.Finally, there are some limits of localization. Concretely speaking, the most important point in legal transplants is that we should base on our national conditions.The aim of legal transplants is to integrate foreign resources with local resources, and make foreign resources achieve a creative change. The significant problem that should be taken into consideration is that: on the one hand, we should not be in favor of local resources exclusively against foreign resources. On the other hand, we should prevent unreasonable and uncivil factors, which will play adverse role in development of law, from going into our legal culture.By systematically analyzing the localization of foreign law, this paper concludes that the localization of foreign law is a significant approach to development of Chinese law. By way of local adjustment to foreign laws, Chinese law will be promoted in sprit, institution and people's consciousness of law-abiding at a higher level. In conclusion, the localization of foreign law is a model of development of Chinese law.