Law transfers or the double illusion : introduction

The notion of law transfer is part of the daily vocabulary of international institutions : overtly or cryptically, the experts advise technologically under-developed countries to import right away the legal institutions of the Great Powers, letting feel that similar rights will determine analogous economic growth and social development. It would be easy to quote in French speaking countries hundreds of codes, not to mention plain laws, whose essential content, quantitatively at least, is textually borrowed from French or Belgian legislations.

The case is not new. Impelled or borrowed, legal systems have often ruled populations which they had not been designed for. The Hammourabi code thus reigned during a full millenary over ancient East ; Greek cities used to borrow one another’s legislations, and so did by the way our mediaeval towns ; and what to say of the extraordinary extension of the Roman law, of the coranic rule and of Napoleon’s code?

Yet today’s experiments seem to be less convincing. The hope of development through the right to importation left the place for disentchantment and an urge for endogenous development. Why so many sheets of paper xeroxed and so little result?

As a matter of fact, people had omitted to analyse the law. Such analysis would have demonstrated that the effects of a rule do not depend only on its formulation, but also on the objectives and the action mode of those who use this law and of the representations they associate to it.

The law is not the built-in edifice existing for itself which handbooks will present as adapting itself according to some harmonic process to a one-way evolution : it is the always provisional result of struggles between individuals and groups, which give rise at the same time to practices and to discourses meant to obtain some sort of a consensus on the effect of the practices. Such consensus is indispensable. It is the only way to shift from sheer force to law. Hence the importance of the discourse that explains which practices are legal, and why.

If analysis is pushed a little further, we can see that legal practices meet relatively permanent objectives and yet have to adapt themselves to rather frequently changing action modes. Alike, legitimating discourses carry messages whose shape easily changes although their ideologic or mythological representations are fairly more constant. It is not enough, for instance, for legal prescriptions and messages to acknowledge the division of society ; they still have to give this division a meaning by relating it to some founding myth in this particular case, or there to rationality, which is the fundamental myth of French lawyers.

He who does not see the legal phenomenon as a whole (objectives, practice proceedings, messages and representation of the corresponding discourses)and does not understand that the objectives and representations are less flexible than action modes and discourse representations, really dreams empty dreams about the feasibility of adapting the law to technological evolution by transfer of rights from technologically advanced countries. Such transfers were once justified and are still justified either by a so-called superiority of western rights over others, or by some alleged better adaptation to the modern technological environment.

But if the whole of the legal phenomenon is considered, it is to be noticed that such superiority is sheer optical illusion and that the efficiency of the rules is always a local phenomenon : in different conditions, the same rules give rise to different effects ...