Law Transfers or the Double Illusion

Considering the legal phenomenon in its whole, practices and discourses, does not lead only to abandoning the myth of western rights’ superiority but also to acknowledge that practices and discourses cannot be put apart, because they are in reality inseparable, indissociable.

In the field of the law, practices do not have any meaning or efficiency but through the discourses which make their results agreeable, and such discourses cannot be understood but by considering the said results. This is as true where the legal discourses pass the results under the counter as where the same results are passed openly with justifications : the same unequalitarian and elitist reality prevails, hidden under the French legal discourse and exalted by the African traditional discourse, - which in both cases, makes the results agreeable.

Reflection on law transfer policies cannot make abstraction of the practices of users of the law. However, if their modes of action are often comparable in the West and outside the West, the objectives pursued are quite different. The texts which provide for judicial procedures to settle individual quarrels do not have the same effect when the objective is to defeat the adversary as when it is to conciliate and reconciliate the parties. As much can be said of the texts which set up penal punishments against trespassers when the objective is to amend the trespasser and when trespassing is considered as a symptom of a social disease, the purpose being rather to cure the contaminated community .

The more so as, if it is relatively easy to adopt new texts, the objectives of the populations do not change easily, being closely connected to education. Changing the texts and making mentalities change obey different rhythms. This is all the more true if we consider, in the discourse, not only the text which can be read or heard, but also the representations which are associated to it and which give it its meaning.

These representations, linked with the dominant ideology, have a mythical character, even in France. The myth of national will enlights a Constitution which allows to impose on all what is called the law of majority. The myth of legal unity is here very cleverly resorted to by the highest legal authorities to make out, without apparently creating them, general principles which are used by them to reinforce their control of Administration. The sacralisation of the State, the cult of the Law, remind us of all the mythologies which give the power to dynasties or individuals chosen by God, and magnify the efficiency of their speech, the authority of their representatives or their town crier’s drum.

Yet, these representations, without which all discourses carrying them would have quite different meanings, are evolving at a still slower rhythm than the choice of objectives by the users of the law.

It is therefore not sufficient to xerox a text to transfer a law. The text has no meaning unless through the representations which are associated to it, and which cannot be expatriated. And even if the discourse formed by the text and its representation were exported, it would have to be associated to legal practices which would most probably be different from these one might expect, because they would answer other objectives.

Denouncing the double illusion (superiority, transfer)leads to showing that the evolutions of the Law, even when they meet requirements coming from outside, can only be endogenous.