Argonauts of the Eastern Mediterranean: Legal Transplants and Signaling

Abstract

This paper tells the story of the Harvard-Israel Cooperative Research for Israel's Legal Development Program, created by a group of German-Jewish lawyers in the 1950s. The paper argues that an analysis of the history of the program, and a related program of Israeli legal aid to Africa in the 1960s, can suggest novel ways of understanding the social acts involved in the process of legal transplantation.

Much of the literature on legal transplants focuses on the legal norms that are transplanted, and connects the existence of the phenomenon of transplantation to the more general debate about the relative autonomy of law. In this paper I would like to shift the focus of the debate from discussion of the legal norms transplanted to the social acts involved in the process of transplantation.

My argument is that while transplantation may be motivated by utilitarian considerations, such as the desire to obtain foreign norms which are deemed superior to local law, it is sometimes also a process of signaling. Signaling theory seeks to explain a wide range of indirectly-utilitarian forms of behavior, ranging from the extravagant tails of peacocks to conspicuous consumption or monumental architecture in human societies. This paper argues that one of the roles of the Harvard Program (as well as the program of Israeli legal aid to Africa in the 1960s) was its use as a signaling device to communicate to Israel's potential western allies as well as its Arab enemies the fact that Israel was both a part of the civilized world, and thus a worthy partner for cooperation and a state strong enough to survive in the hostile environment into which it was born.

Keywords: signaling, comparative law, transplants, diffusion, Harvard, Africa, Israel, intellectual history, legal history