How does the diffusion of law affect our understanding of legal orders?

In order to approach this question it is necessary to first form at least a vague definition of the two key terms: legal orders and diffusion. As it is more practical to define diffusion in terms of legal orders I shall first attempt to outline what constitutes a legal order. This is not a phrase that can be defined concisely and it is difficult to find a brief statement that encompasses all that we mean when we are discussing legal orders. Legal orders are what constitute legal systems. A legal order is any normative order that is enforced by a legally sanctioned body. As legal orders are integral in the formation of legal systems, it benefits us, for the purpose of this question, to look at the interaction of legal systems as well as legal orders on an individual level. Diffusion is an ambiguous term. For the purposes of this essay I shall note and consider diffusion in its many forms as set out by Twining: ‘Since 1959 the study of diffusion of law has proceeded under many labels including reception, transplants, spread, expansion, transfer, exports and imports, imposition, circulation, transmigration, transposition, and transfrontier mobility of law.’ For an apt definition of the term I shall again turn to Twining: ‘Diffusion is generally considered to take place when one legal order, system or tradition influences another in some significant way.’ Examples of legal systems are common law, civil law and religious law. Therefore, the question is essentially asking: how does interaction of this nature contribute to the understanding of this broad notion of legal orders? Diffusion facilitates the spread of law. Many of the labels noted by Twining are subsections of diffusion or methods of the spreading of law. In order to consider the full scope of the question it is important to consider more than one of these subsections.

This is a preview of the whole essay

In order to structure an adequate answer to the question I will evaluate, analyse and compare the legal systems of different countries. This allows me to discuss the rather abstract notions of legal orders and diffusion, using more real and tangible examples. Firstly I shall look at the legal system in place in Canada. This system is interesting because it shows a great deal of geographic variation and, in Quebec; it manages to combine two of the most prominent general legal systems in the world: Civil law and Common law. As with many former British colonies, the Canadian legal system finds its roots in a common law system similar to that of the UK. However, whilst retaining vast areas of these roots, Quebec also developed a Civil law system for dealing with private law. This is largely due to the fact that whilst large parts of the rest of Canada were colonized by the British, Quebec was colonized by the French. As the British brought with them a common law system, and the French a civil law system, it would follow that imperialism played a significant role in the formation and development of Canada’s legal system, which in turn has a large influence on the legal orders of today. By imperialism I mean the imposition of law by virtue of conquest. However, given the fact that Quebec now has a partially common law system and the law of Canada as a whole has undergone many changes since colonisation, it would be naive and narrow minded to say that its legal orders were formed purely through imperialism: ‘To be sure imperialism, and neo-imperialism form an important part of the picture. But this patronising view hardly fits the story of the spread of law as part of the baggage of colonists, migrants, refugees and others or of the great religious diasporas throughout history, nor of interaction within countries, regions or alliances.’ This is certainly true of Canada given its variation in legal tradition as well as variation in legal orders across the provinces.

South Africa has gained its independence far more recently than Canada and the effects of diffusion can be seen even more clearly. In order to understand the way in which different legal traditions, systems and orders have been influencing each other, I shall give a brief history of South African Law. Before the arrival of the Dutch, the area now known as South Africa was dominated by a nomadic people with a very primitive form of customary law. The influential Dutch then arrived and began to develop a legal system similar to the Roman-law based Dutch system. Following the arrival of the British at the height of their power, aspects of their common law system began to become legal orders. Alongside these two new influences ran the customary laws of the indigenous people, which were certainly less prominent than these new influences, but were recognised at various stages, such as The Native Administration Act 1927. The modern day picture is of a mixture of legal systems coming together to form a hybrid. The formation of the South African legal system incorporates the transplanting of law. The idea of the diffusion of law via a transplant of law is an interesting one. Whilst some claim that this process is as simple as taking one statute or aspect of a legal system and placing into another, others claim that a legal system is more like a living organism and there is always a chance of rejection. Further to this there are those critics who claim that the transplanting of law is totally impossible. During the transplant of English common law into the South African system much of the procedures were transplanted as well, as opposed to merely statutes and rules. One of the main reasons for the relative success of the South African system is the measures that were taken to aid the implant of these new legal systems. Lawyers, judges and procedures were all imported as well to facilitate the harmonisation of the implant. In addition to this, elements of customary law were kept in place. I would follow the argument that a legal system is like a living organism and thus a transplant is a delicate operation that may face rejection if not carried out correctly. Furthermore, it must be noted that transplantation is not a quick process, but may take a long period of time. As in the case of South Africa the Dutch influence began in the seventeenth century. In this respect diffusion of law allows us to see how different legal orders have interacted and influenced each other to form the generally accepted set of legal orders present in the contemporary climate.

The South African system is really a hyperbole of every system in the world. For as Orucu points out: ‘The simple conclusion is that there are no pure systems in the legal world and that there are various degrees of hybridity arising from different levels and layers of crossing and intertwining between the roots and branches of adjacent ‘family trees’’ To some extent or another, every legal system has been influenced by some other form of legal system, tradition or family. For this reason diffusion, the process by which this influences occur, does help to enlighten us when discussing legal orders. However, diffusion of law does not account for all law in a certain area. Furthermore, when a body accepts a set of legal orders for some time and they become accepted and adapted as customary, it may become less useful to discuss them in terms of their diffused roots. Although diffusion aids our understanding in a positivist sense it does not aid with our understanding of any notions of natural law or with the development of law in a moral context in line with the changing views of a particular society. Whilst considering diffusion to aid understanding of legal orders is undoubtedly a useful concept, one must be wary of the scope of its usefulness.