Developing Legal System, Legal Transplants, and Path Dependence: Reflections on the Rule of Law

Abstract

Borrowing laws and legal institutions from one country to another is used as a way to improve a legal system. The problem is that transplanting foreign laws or legal institutions does not take place in a legal cultural vacuum. Transplanting difficulties are obvious when borrowing takes place in the form of wholesale absorption, but even selective borrowing has its own obstacles. This article discusses the significance of the so-called path dependence for legal transplantation. The aim is to highlight transplantation difficulties from the point of view of legal history. The significance of path dependence is addressed as a way of illustrating the importance of the law’s past to the transplantation of the rule of law. The analysis is based on the distinction between a formalist and a substantive notion of the rule of law, and it discusses two illustrative cases: China and Poland.