“One Size Can Fit All” – On the Mass Production of Legal Transplants

Authors

Ralf Michaels, Duke Law SchoolFollow

Document Type

Chapter of Book

Publication Date

2013

Keywords

law reform, legal transplants, globalization, standardization, IKEA theory

Abstract

Law reformers like the World Bank sometimes suggest that optimal legal rules and institutions can be recognized and then be recommended for law reform in every country in the world. Comparative lawyers have long been skeptical of such views. They point out that both laws and social problems are context-specific. What works in one context may fail in another. Instead of “one size fits all,” they suggest tailormade solutions.

I challenge this view. Drawing on a comparison with IKEA’s global marketing strategy, I suggest that “one size fits all” can sometimes be not only a successful law reform strategy, but also not as objectionable as critics make it to be. First, whereas, “one size fits all” is deficient a functionalist position, it proves to be surprisingly successful as a formalist conception. Second, critics of legal transplants often insists on what can be called “best law” approach, whereas in law reform, what we sometimes need is law that is just” good enough” law. “Third, legal transplants no longer happen in isolation but rather on a global scale, so that context-specific rules are no longer necessarily local.

This is not a plea for formal law, for commodification of laws, and for “one size fits all”. But it is a plea to overcome the romanticism and elitism that may lurk behind the seemingly benign suggestion that law reform must always be tailored to the specific societal context.

Citation

Ralf Micheals, "One Size Can Fit All" – Some Heretical Thoughts on the Mass Production of Legal Transplants, in Order from Transfer: Comparative Constitutional Design and Legal Culture Law (Günter Frankenberg ed., 2013)