Brief Discussion On Legal Transplants

Being lashed by the Globalization of Economy, many developing countries including China are conducting a movement to modernize legal system, to face the challenges posed by pressures both at home and abroad. In order to catch up with the developed countries as soon as possible, the developing countries have to observe the world carefully and study other countries' experiences and methods especially the developed countries' and transplant their law. This paper intends to explore this question of transplantation hoping that some references may be made for China's socialist legal system.This paper is composed of four sections.The first section expounds connotation of transplantation of law. The word "transplantation" comes from botany and medical science. Obviously, transplantation of law is more like the latter rather than the former. It is about equal to drawing lessons or absorbing nutriment from other countries' or regions' law that most Chinese usually refer to. Sometimes it has more meanings than them. But, there isn't major essential distinction between them.The second section expounds inevitability and necessity of transplanting law from two angles. One is from theoretical angle, including three points, which are dialectical materialism, communication of culture and inheritance of law. The other is from realistic angle, including three points, too. (1) The Globalization of Economy will be bound to lead to the Globalization of Law and bring about more transplantations of law; (2) The development of society and law is unbalanced, which results in inevitability and necessity of transplanting law; (3) Transplantation of law is an inevitable requirement of modernizing legal system.The third section expounds possibility and feasibility of transplanting law from two angles. One is from realistic angle, illustrated by Japan's three major transplantations in history. The other is from theoretical angle which includes economic, political and cultural factors, and so on.The last section expounds a few questions which need to be paid attention to in transplanting law. (1) The first is the relationship between transplantation of law and wholesale Westernization. The author thinks that they are not equal to each other and we also shouldn't refuse to learn from the West in fearing of wholesale Westernization. (2) The second is the relationship between transplantation of law and indigenization of law. Indigenization of law is that one's native country digests the law that is transplanted. But it emphasizes on digestion rather than nativism. (3) The last is exact question which should be stressed in transplanting law such as standards of transplantation and entirety of transplantation and risks of transplantation.In conclusion, transplantation of law is an inevitable phenomenon in the development of human society. China must undertake careful studies of it and make full use of it and transplant useful law from the whole world. In transplanting law, we certainly should not be seeking short-term successes and quick profits. We should take a long-range view. After all, modernization of legal system could not be accomplished by a single action.