Date of this Version
University of Pennsylvania Journal of International Economic Law
The collapse of the Soviet Union and Soviet hegemony over Central and Eastern Europe, the awakening of Asia to the global economy, and the nascent democratization of Latin America are inseparably intertwined with a phenomenon called globalization, and have contributed to the appearance of a subset of developing countries known as emerging economies. The appearance of emerging economies creates a great number of challenges and intellectual puzzles for sociologists, economists, political theorists, and legal scholars. Among the greatest of puzzles is the tremendous amount of law that is being transplanted' into emerging economies. Not since Africa emerged from colonial rule in the 1960s and Latin America attempted reform in the 1970s has so much law been transplanted in such great quantities into so many countries.
Many regard those earlier attempts at transplanting law as failures. One reason given for the failure is that the transplanted law did not comport with the cultures into which the laws were transplanted. Indeed, although theoretical discussion of legal transplants dwindled after the failure of those prior efforts, a conventional theory emerged concerning the viability of transplants - a theory that emphasizes the relationship between law and culture. That convention holds that transplanted laws that do not comport with the culture of the host country will not be accepted and instead will either be ignored or rejected.
This Article empirically tests the prediction made by the conventional theory concerning transplanted law. It does so by ascertaining the acceptance or rejection of a transplanted law by businesspersons in the Republic of Kazakhstan. The data this Article scrutinizes was obtained in interviews conducted in Kazakhstan. Kazakhstan is an especially suitable polity in which to test the prediction of conventional theory because its culture is very different from that of the West and does not have common roots with that of the West.
This Article finds that although the transplanted law in question did not emerge from the culture of Kazakhstan and does not comport with the culture of Kazakhstan, the law is accepted. In other words, in this particular case the predictions of the conventional theory are not borne out. This finding raises questions as to why this law was accepted, and also supports an argument that law is not simply a product of culture, but also constitutes culture. Before the specific implications of the findings of the research conducted in Kazakhstan can be discussed, however, the more general issue of the relationship among law, transplantation, and culture must be discussed.
Nichols, P. M. (1997). The Viability of Translplanted Law: Kazakhstani Reception of a Transplanted Foreign Investment Code. University of Pennsylvania Journal of International Economic Law, 1235-1279. Retrieved from https://repository.upenn.edu/lgst_papers/10
Date Posted: 27 November 2017
This document has been peer reviewed.