Law transfers or the double illusion

Law transfer policies with a view to drawing economic growth and social development of the less technologically advanced countries are linked to the faith of the Great Powers in their natural superiority or in the chronological advance of their rights.

It should be known that what the Westerners call "the law" at home and in technologically less developed countries does not cover the same reality.

What they call their right is before all their legal discourse : French law handbooks, for example, generally develop, without acknowledging it, mythic stories about the unity of the law, its rationality, the hierarchy of standards, of acts and actors, power, national or popular will, equality of persons, general interest, the public service, the agreement of law-generating wills, etc ... which nearly always occult practices of law whose study seems to them little worthy of the legal science, just good for legal sociologists.

On the contrary, what western lawyers call "the law" in less technologically advanced countries will rather concern legal practices (weddings, land-taxes, the executive)which are filed, named and analysed by ethnologists, most often with respect to the economic activity, without taking into account the accompanying discourses. Such practices are considered, with respect to the myths from which they are nourished, as more relevant of analysis by mythologists than by lawyers.

This double mutilation of the legal phenomenon entails the illusion of an opposition of our laws to other laws, and of a superiority of the first over the latter.

There is no natural opposition between European laws and the traditional laws of other continents. Those who chose to oppose "logical mentality" and "pre-logical mentality", "law" and "pre-law", hot societies and cold societies, were the victims of an optical illusion : by comparing the laws of Western countries to the traditional laws of other countries while they identified the first to western legal discourses and the others to traditional legal practices, they fancied some geographical opposition, and according to the darwinist mythology of the West, some chronological opposition, whereas the case was plainly that of an opposition between discourses and practices.

This illusion led them to conclude to the superiority of western laws, which have more rationality : as its objective is to gain consensus, any legal discourse will indeed be more rational than the practices it aims to legitimate. But in fact, the discourses of traditional laws are not less rational than these of western laws : they simply meet the requirements of other logics rooted in other myths.

If one considers, in the West or elsewhere, the legal phenomenon as a whole, discourses and practices together, the illusion disappears : there remains neither an opposition between western laws and the others, nor any superiority of the first over the latter.

Nothing, in the nature of the law, therefore justifies any transfer policy of laws from the West towards what it likes to call the Third World.