Diffusion and Globalization Discourse

Abstract

id=893682. 2006 / Diffusion and Globalization Discourse 511 texts, focusing on foreign inouences may seem to be as sterile or trivial as a search for origins in history or for inouence in art. If we consider diffusion as a process, the label is not entirely satisfactory. To me the term suggests outward movement—from metropolitan power to colony, from center to periphery, from rich, modern, developed country to poor, traditional, underdeveloped one. Westbrook’s intriguing metaphor of cream poured into coffee, swirling and billowing before blending into a homogenized liquid, is suggestive. But this only captures part of what we should be concerned with. The cream comes from a single outside source, it is poured from above, the oow is in one direction, and the blending is relatively harmonious;20 but many of our stories of diffusion of law are more complex— often involving two or more reciprocally interacting change agents, crossing of levels, and repression, resistance, or avoidance. Not infrequently, there may be a failure to mix, so that the outcome is a veneer of surface law superimposed on pre-existing orderings that survive but are obscured by the “modern” newcomer—more like oil and water than coffee and milk.21 I have recently tried to start a brand new fashion in jurisprudence, called the Self-Critical Legal Studies Movement. From some of my own early attempts to give an account of “reception,” I have constructed a naive model of reception that has twelve elements, none of which are necessary and some of which are not even characteristic of most processes of diffusion.22 The assumptions of the model can be brieoy restated as follows: [A] bipolar relationship between two countries involving a direct oneway transfer of legal rules or institutions through the agency of governments involving formal enactment or adoption at a particular moment of time (a reception date) without major change. . . . [I]t is commonly assumed that the standard case involves transfer from an advanced (parent) civil or common law system to a less developed one, in order to bring about technological change (“to modernise”) by alling in gaps or replacing prior local law.23 Table I24 illustrates just some of the possible variants and deviations from each element in the model. If we view this model as an ideal type of accounts of 20. Westbrook talks of “adoption” by subjects. This is reminiscent of Glenn’s controversial claim that receptions are never imposed, because they only succeed through persuasion. See H. Patrick Glenn, Persuasive Authority, 32 McGill L.J. 261, 265 (1987). This optimistic view runs counter to most accounts of law and colonialism. 21. The term “surface law” refers to law as it appears on the surface in formal sources (such as codes), ofacial views, textbook statements and the like. Such accounts may or may not be superacial or misleading. On their own they say little or nothing about how the law is interpreted, applied, used, or enforced, about its operation in fact, and what its social and economic consequences are. The concept is in need of development, especially in the context of diffusion. Beneath surface law may lurk other forms of law, which may be obscured or rendered almost invisible. 22. The model is introduced and discussed in Twining, Diffusion of Law, supra note 4, at 3. 23. Id. 24. See Table I infra pp. 514–15. 512 Harvard International Law Journal / Vol. 47 reception/transplantation in the legal literature, we and that some of the deviations are recognized by some commentators, but overall such a model is widely assumed to represent a paradigmatic case.25 I have examined each of these elements at length elsewhere. In the time available, I shall comment on two points. III. The Signiacance of Nonstate Law What is diffused? As with legal pluralism, talk of diffusion is a context in which familiar issues about the concept of law are hard to avoid. Talk of diffusion exerts pressure to broaden our conception of law in two ways. First, most writers on legal reception/transplantation recognize that the objects of diffusion extend beyond legal doctrine to include styles of thought, ideology, procedures, institutions, and such matters as wigs, gowns, courtroom design and standard form documents. It just does not make sense in this context to think of legal rules in isolation.26 On the other hand, most writers on reception choose to focus mainly or entirely on municipal or state law and they assume or openly deny that they are concerned with nonstate law. If one is concerned with law reform in countries in transition, or structural adjustment, or harmonization of private law in Europe, this focus is understandable. However, in considering diffusion as a process, it is difacult to keep nonstate normative orderings out of the picture. Importation of legal ideas rarely involves alling a vacuum, cleanly or completely superceding what was there before.27 The process almost inevitably involves interaction with pre-existing normative orders—whether they are characterized as “law” is of secondary importance. Some writers contrast ofacial and unofacial law,28 modern and traditional law, or formal and informal norms29—the important point is that this kind interaction is almost always an important part of the story.

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