Strani pravni život (Jan 2020)
Application of the theory of legal transplants to the transfer of law in Japan during the Meiji Restoration
Abstract
Studying comparative law in the 1970s, Alan Watson came up with the idea that law is created by transferring legal solutions from one legal system to another through legal lending. Accordingly, he developed a theory of legal transplants explaining the emergence of law by borrowing existing law from the donor country system to the recipient country system. The most important criteria based on which the certain legal system is selected for being transferred to the other system or state are authority of the donor system, as well as its availability. Watson has made a significant number of conclusions about the ways in which laws are transferred based on his theory. On the other hand, in the second half of the 19th century, Japan was forced by the Western powers to accelerate the modernization of the state and society in order to resist them, and saw the most significant form of modernization is modernizing its legal system and aligning it with the legal systems of Western countries. The method they were using for modernizing its law was a method of legal transplants. Accordingly, when the conclusions drawn by Watson regarding the theory of legal transplants apply to transfer of law in Japan during the Meiji Restoration period (1868-1912), most of the conclusions coincide with the method of legal transplants. However, a certain number of conclusions of Watson cannot be applied to the process of modernization of law in Japan. This paper will highlight the conclusions that cannot be applied to Japan in a given period, and it will analyze and provide arguments for the impossibility of applying them, with the aim of making the theory of legal transplants more accurate and complete.
