(2004) JLP 49: 1-45

DIFFUSION OF LAW:

A GLOBAL PERSPECTIVE

William Twining

Abstract

A number of widespread, but not universal, assumptions underlying contemporary discourse about ‘reception’, ‘transplants’, or ‘transposition’ of law taken together constitute ‘a naïve model of diffusion of law’. These assumptions are that:

(a)     there was an identifiable exporter and importer;

(b)     the standard case of a reception is export-import between countries;

(c)     the typical process of reception involves a direct one-way transfer from country A to country B;

(d)     reception involves formal enactment or adoption;

(e)     the main objects of a reception are legal rules and concepts;

(f)      the main agents of export and import are governments;

(g)     reception occurs at a particular moment of time;

(h)     the standard case is export by a civil law or common law ‘parent’ legal system to a less developed dependent (e.g. colonial) or adolescent (e.g. ‘transitional’) legal system;

(i)      the object of reception retains its identity without significant change after the date of reception;

(j)      the received law either fills a legal vacuum or replaces prior (typically outdated or traditional) law;

(k)     most instances of reception are technical rather than political, typically involving ‘lawyers’ law’;

(l)      each reception either ‘works’ or ‘fails’.

This paper argues that, if one adopts a global perspective and a broad conception of law, each of the twelve elements in this model can be shown to be neither necessary nor even characteristic attributes of the processes of diffusion of law. This represents a first step towards renewing a conversation with the social science literatures on diffusion.