Conclusion — The Migration of Legal Ideas: Legislative Design and the Lawmaking Process
N. Lupo & L. Scaffardi, Comparative Law in Legislative Drafting: The Increasing Importance of Dialogue Amongst Parliaments (Eleven Int’l Publish’g 2014)
12 Pages Posted: 31 Mar 2014 Last revised: 27 Jul 2014
Date Written: July 25, 2014
This is the conclusion for an edited volume on legislative usage of foreign and international law, N. Lupo & L. Scaffardi, Legal Transplants and Parliaments: A Possible Dialogue Amongst Legislators? (2014). I assess the general turn in comparative law studies towards the behavior of elected officials, as well as the preference for increased formality in the use of foreign law. The essays in this book analyze the legal experiences of Brazil, Namibia, Australia, South Africa, Spain, the European Union, China, Canada, Portugal, the United Kingdom, the United States, and Italy. Many of these countries (but not all, especially the U.S.) are characterized by a receptivity to foreign and international law. A commitment to legal pluralism can be especially pronounced in countries seeking to escape a colonial past. While a newfound preference for increased formality in using foreign models can be detected, experts disagree whether the quality and frequency of actual usage has improved. Additionally, there may be certain undesirable consequences of heightened proceduralism and professionalism. Attention to the role of particular institutions, bureaucratic innovations, and lawmakers' motivations in borrowing (or not borrowing) from foreign law would be most fruitful for research going forward.
Keywords: borrowing, transplant, comparative law, parliament, legislature, lawmaking, procedure, formalism, institutionalism, Brazil, Namibia, Australia, South Africa, Spain, European Union, China, Canada, Portugal, United Kingdom, United States, colonialism
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