Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Differences

Abstract

Legal irritant explains the transfer of legal rules from one country to another better than legal transplant. When a foreign rule is imposed on a domestic culture, it is not transplanted into another organism, rather it works as a fundamental irritation which triggers a whole series of new and unexpected events. It irritates law's binding arrangements with other social sectors. Legal irritants cannot be domesticated, they are not transformed from something alien into something familiar, not adapted to a new cultural context, rather they will unleash an evolutionary dynamics in which the external rule's meaning will be reconstructed anew and the internal context will undergo fundamental change. As the example of the imposition of good faith on English law demonstrates, the concept of legal irritants has far-reaching consequences for the transfer of private law rules from one economic culture to the other. The imperatives of a specific Anglo-American economic culture as against a specific Continental one will bring about a fundamental reconstruction of good faith under the new conditions.

Keywords: legal theory, system theory

JEL Classification: K10, K40