This research discusses legal transplants in Asian countries. Legal transplantation (legal transplantation) is a theory that began to be widely used by some comparative and socio-legal law scholars ...in the mid-1970s. Using a normative juridical research method, this study chooses a historical, comparative, case and conceptual approach in examining legal transplantation in Asian countries. The results of this study indicate that there are two types of legal transplants carried out by common law and civil law countries in Asia, namely historical legal transplants and practical legal transplants.
This article aims at studying the circulation of legal concepts and its consequences on the constitution of customary law in colonial Punjab by British, starting to the second part of 19th century. ...It falls within the general theme of « travelling norms » and, thus, it describes different sorts of legal transplants (going from the simple influence to the unilateral implementation), which are associated with multiple legal actors.
This article discusses the influence of Western legal systems on Islamic law in Muslim countries, such as Turkey, Egypt, Iraq, Kuwait, Syria, Libya, Pakistan, Indonesia, and Malaysia. It uses the ...comparative law scholars’ legal transplant theory to see the influence. The article may enrich the discourses in Comparative and History of Law. It may contribute to many scholars and reformers of law who choose the best model of Islamic law reforms according to the histories of the law of their countries. This study shows that the transplantation of Western law in Muslim countries has occurred since the colonialism period, World War I, and World War II. These legal transplants occur by taking part in a foreign legal system, namely the modern Western legal system, for overall such as in Turkey, as well as the majority of modern Western legal methods synthesized with local law, such as in Egypt, Indonesia, Malaysia, and other Muslim countries. There are three types of Muslim countries based on Islamic law reforms undertaken. They are the Muslim countries that apply Islamic law and traditional fiqh, with no legal transplant; the Muslim countries that adopt Western law. This is a legal transplant, and Muslim countries implement Islamic law using appropriate Western methods and procedures. Moreover, this is a partial legal transplant. The law reform in Muslim countries was carried out by intra- and extra-doctrinal reform, legislation (regulation), and codification methods. The last three methods are the partial legal transplant models.
Efforts to eliminate and prevent the practice of P2GP/FGM which are considered human rights violations against women are carried out by banning P2GP/FGM in several countries, one of which is Egypt. ...Meanwhile, there is no regulation or policy to stop P2GP/FGM in Indonesia. Seeing the decline in the prevalence of FGM practices in Egypt, the authors are interested in analyzing the transplantation of P2GP/FGM prohibition settings through a comparative study of Indonesian and Egyptian laws. This research is normative legal research with a conceptual approach and comparative law. Comparative law studies are conducted to get an overview of solutions to the same problems in other countries. The practice of P2GP/FGM in both Indonesia and Egypt is based on ancient traditions and not for medical or religious purposes. The striking difference between the two countries in eliminating FGM practices is the commitment to regulate FGM in legal instruments in their countries. Therefore, in dealing with problems with the same root cause, Indonesia can refer to the same solution, namely by formulating legal instruments regarding P2GP/FGM as a criminal act by carrying out legal transplants adapted to the ideals of the Indonesian legal state.
While contracts by minors are generally voidable in most common law jurisdictions, the apex court in India and in Malaysia has each held that such contracts are void ab initio, following a ...century-old Privy Council decision in Mohori Bibee (1903) 30 ILR Cal 539. This article explores minors' contracts through the lens of legal transplant-viewing transplanted laws on a continuum, from a 'Strong Watson' perspective where English common law was adopted by the Indian courts, to a 'Weak Watson' position following the Privy Council's interpretation of the law in the Indian Contract Act 1872. The authors conclude that the current Weak Watson transplant of laws on minors' contracts is a 'misfitted' transplant which is neither consistent with the original intent of the transplanted law nor fit for purpose in a modern context. Given minors' inability to enter into contracts or seek remedies, urgent legislative reform or judicial reinterpretation is required in India and Malaysia.
As a modification on the general system of cartel leniency, leniency plus allows a cartelist who failed to secure complete immunity under the general leniency programme to obtain further reduction in ...sanctions in exchange of information regarding the operation of another anticompetitive agreement. Leniency plus originated in the US and has since been transplanted into various jurisdictions with a variety of modifications. Recently, the Indian government proposed the introduction of leniency plus into the Indian competition law framework with a view to to enhancing the efficiency of the Indian cartel leniency programme. This paper argues that the transplantation of leniency plus into the Indian competition regime might not yield the desired benefits, and might be counterproductive. It goes on to propose an increase in individual sanctions and introduction of clear guidelines as more apt remedies to help the Indian leniency regime.
Il saggio raccoglie le riflessioni condivise dall’Autrice in occasione del Convegno Dialogo transdisciplinare e identità del giurista organizzato dalla Facoltà di Giurisprudenza dell’Università degli ...Studi di Milano nel settembre 2022. L’occasione di dialogo con cultori delle materie di diritto positivo che condividono con i giuristi storici il compito di formazione degli operatori del diritto di domani ha stimolato una riflessione che si è sviluppata ripercorrendo le ricerche svolte in anni recenti, o attualmente in corso, collaborando con colleghi di diverse discipline, giuridiche e storiche, sul notariato, sul diritto penale, sulla giurisdizione amministrativa, sulla repressione attuata in Libia dal Tribunale Speciale per la Difesa dello Stato.
This article investigates the extent of possible transplantation of some western bankruptcy principles to Oman. Such principles include the concept of rescue culture, the notion of ‘cram-down’, ...imposition of stay on secured creditors’ claims and the concept of ‘debtor-in-possession’. It demonstrates the fact that since the start of the legislation path in Oman in 1973, Oman tends to transplant some legal western concepts and such transplantation is accepted. However, the author supports the view that before transplanting foreign principles it is crucial to assess their workability and functionality to avoid the risk of rejection.
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