Book

Description

Whilst the existence of cultural differences across nations and continents has been widely documented and debated, there is a perceived dearth of legal research on the plethora of drawbacks facing shoddy, botched, and watered-down legal transplants. Building upon this, and drawing on in-depth research on a treasure trove of original sources in Latin, Italian, Spanish, Portuguese, German, French, and English, this paper challenges the validity of the theory of legal transplants while laying down the foundations for the creation of the legal pollination theory. Unlike legal transplants, legal pollination leverages a law-in-context methodology against the backdrop of which historical, religious, societal, economic, political, and cultural factors of the receiver-legal system are painstakingly parsed. Failing which, legal dormants and cultural divergence with law are bound to occur. Legal dormants relate to the fraction of a legal culture which has not been illuminated by the light of law. Mediation - which forms part of a broader Chinese legal culture within which the penchant for solving disputes through amicable means operates - stands as a paradigmatic example of a legal dormant. Recall, Mediation, as a dispute resolution mechanism, was wiped out from Macau´s legal landscape back in the 19th century. To this day, there is no such thing as a full-fledged Mediation legal framework in Macau, which also amounts to a case of cultural divergence with law.