Introduction

Chapter 1
Introduction

Sue Farran and Christa Rautenbach

The chapters collected here represent a wide range of legal systems, with contributions from established academics through to post-graduate and early career contributors. Each chapter is a reflection on particular aspects of a legal system or several legal systems and each provides a concrete example of the diffusion of laws and norms located against the wider academic context of diverse laws and legal systems (juris diversitas). While the aim of this introduction is not to revisit the existing literature on diffusion, much of which is referred to in the various contributions, it is perhaps worth drawing attention to the range of features which characterise diffusion and for which these chapters provide illustrative examples.

The diffusion of laws has been an important topic in comparative law and legal globalism discourses at least since the publication of Alan Watson’s inspiring book on Legal Transplants.¹ He coined the term ‘legal transplants’ to indicate the moving of a legal rule or norm or a system of law from one country to another, and the notion of legal transplantation is based on diffusion of some form or another. Of course, most changes in the majority of legal systems are the result of transplantation. Although he did not use the expression ‘diffusion of law’ in the 1974 edition of his publication, it seeped into the afterword of the second edition, published in 1993,² where he contests the following comment of William M. Evan:³

The concept of “legal transplant” has a naturalistic ring to it as though it occurs independent of any human agency. In point of fact, however, elites – legal and nonlegal – often act as “culture carriers” or intermediaries between societies involved in a legal transplant. […] Hence, it is a misnomer to describe and analyze the diffusion of law as if it were devoid of human agency. [Emphasis added]

The expression ‘diffusion of law’ also appears in the well-known book of William Twining on Globalisation and Legal Theory published in 2000. He confesses that his view on the legal elites as the main receivers of law is only a moderated version of Watson’s famous transplant thesis.⁴ Since then Twining has published a number of scholarly works which focus specifically on the concept of ‘diffusion of laws’. He has developed a model of reception based on 12 elements,⁵ which also feature in some of the contributions included in this collection.

The lexical likeness between ‘diffusion’ and ‘transplant’ is quite obvious. The Oxford English Dictionary defines ‘diffusion’ in various ways including ‘the action of spreading abroad’ or ‘the condition of being widely spread’ of abstract things or knowledge.⁶ Diffusion is thus either a process of spreading or a condition of being spread. The word ‘transplant’ is described in the same way as the process to ‘convey or remove from one place to another’ or ‘to bring (people, a colony, etc.) from one country to settle in another’.

The lexical meaning of diffusion corresponds with Twining’s idea of diffusion as something that ‘is generally considered to take place when one legal order, system or tradition influences another in some significant way’.⁷