Translatability and Transplantability of Law: Legal Translation and Comparative Law Brought Together Around the Concept of Legal Transplants

Abstract

Legal transplants refer to the spread of legal ideas across legal and cultural borders and are seen as a crucial conduit of legal change. Sparked by Alan Watson’s scholarship, the legal transplant debate is a central theme of comparative law. One significant controversy it has engendered is, as put by Günter Frankenberg, ‘how legal transfer happens and what happens when it happens’. While some consider transplants relatively unproblematic, indicating evidence of borrowing between very different societies (e.g. the receptions of BGB in Japan or ZGB in Turkey), others strongly disagree, arguing that rules as cultural forms do not travel easily – or cannot travel at all – between interpretive communities. There is also a linguistic side to this discussion, as legal transplants mark an important, yet somewhat neglected, point of contact between legal translation and comparative law. Even more interestingly, the transplantability debate is reminiscent of the long-standing discussion over translatability in general and legal translation theory. Hence, this paper aims to juxtapose the respective arguments and explore how these two research streams can inform each other. The results are intended to shed light on the assumptions made by advocates of (un)transplantability and (un)translatability of law and foster understanding between legal and translation scholars.