Towards a Discursive Analysis of Legal Transfers into Developing East Asia

Abstract

Scholarly interest in the transnational circulation of legal ideas has increased in tandem with the growth of global trading blocks and the proliferation of law reforms projects in developing countries. It is timely to evaluate how successfully current theories about legal transfers, which arose from European and North American experiences, explain the diffusion of legal ideas into non-western legal systems, especially those in developing East Asia. This article argues that current theories propose misleading criteria to explain legal transfers into this rapidly transforming region, because they rarely consider comparative scholarship showing that much economic regulation takes place outside ‘rule of law’ legal doctrines and institutions. As a corrective, this article proposes a decentered system of analysis that shifts the focus of attention away from state centered laws and institutions towards the dialogical exchanges at the periphery of state power that adapt and transform imported laws.

Keywords: law and development, East Asia, legal transplantation, systems theory