Transplants, Colonization as Legal

A Common Cultural Heritage

In evaluating legal transplants, one should consider the objectives and goals of the dominant group, as well as the social and cultural environment of the receiving society. This has implications for the success or failure of legal transplants and the relationship to formal and informal institutional arrangements. Legal pluralism resulting from legal transplants is the result of dual legal systems and is associated with colonies of domination in which indigenous people were often ruled under customary laws by a small European administration, usually representing merchants, soldiers, and clergy. The main colonial economic activities were trade, exploitation of natural resources, and an imposed system of taxation based on Western legal systems. In the postcolonial period, transplanted laws and institutions, which evolved elsewhere, have often led to major problems in countries that have very different income levels, implementation capacities, and institutional landscapes.

The concept of path dependence and the distinction between formal and informal institutions, as well as the importance of a common cultural heritage, have implications for success or failure in transplanting legal practices into a different social context. Douglass North's path dependence states that the total stock of institutions is so large that change can occur only at the margin. A common cultural heritage provides a means of reducing the divergence in the mental models of people in a society, and it constitutes the means for the intergenerational transfer of unifying perceptions. A common cultural heritage in multiethnic societies can also mitigate the negative impact of cultural clashes stemming from competing aspects of legal pluralism.

Belief structures are transformed into social and economic structures by institutions—both formal rules and informal norms of behavior. Informal norms consist of sanctions, taboos, customs, traditions, and codes of conduct; formal rules consist of constitutions, laws, and property rights. Throughout history, people have devised institutions to create order and reduce conflict and uncertainty. Institutions evolve incrementally, connecting the past with the present and the future; history, thus, is largely a story of institutional evolution in which the historical performance of economies is part of a sequential story. In this view, transplants without adaptation are a formula for long-term failure.

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