In terms of the pathway, we can say that the critical turning point for Polish legal culture took place in the 1940s and 1950s, when the fundamental characteristics of legal culture changed and the Polish legal mentality shifted from a clearly continental European legal culture to a socialist Soviet-style legal culture. When Poland became a member of the EU in the early 2000s, it had already amended its formal laws and carried out various legal and policy reforms to meet the Union`s membership criteria. However, as shown by the difficulties and differences between the Union`s and Poland`s views on the rule of law, recent dependence on previous legal culture has an impact on the consideration of the concept of the rule of law. The Union considers that the rule of law is strongly understood in terms of content, whereas Poland currently considers the rule of law as a formality and a procedural matter. In short, to explain the difference, one must take into account the recent dependence on the path of Polish legal culture, which clearly favours a thin notion of the rule of law. “Transplantation”, as defined by the Oxford English Dictionary, means “remove or reposition” or “transport or remove elsewhere” or “transfer to another country or place of residence”. It also implies “repression”. The term “legal transplantation” was first coined by Alan Watson, who is credited with incorporating and developing this element of comparative law. In plain language, legal transplantation means repositioning or transferring rules, principles, legal concepts and transporting laws and regulations between different jurisdictions.
In the technical language of law, the term defines the transfer of laws or regulations between legal systems. Their analysis assumes a certain kind of “euphoria” that seems to surround institutional reforms and related science in the 1990s and early 2000s. From a legal perspective, emphasis has been placed on the rule of law in that many institutions in developing countries have been reformed to strengthen and strengthen the rule of law; The problem, however, is that legal development assistance is based on a limited knowledge base about how developing countries actually function. As a result, there is very little information on how institutions relevant to the development of the rule of law in the broadest sense can actually be put in place that are malfunctioning. Prado and Trebilcock emphasize the role of the “critical turn” arising from pathway addiction research. Such nodes are crucial because they play a crucial role in some respects that are very difficult to change afterwards. In other words, some decisions are “locked”. The problem with critical points is that they are a rather deterministic explanation, as it does not predict these points, but only looks back to find them.53 Moreover, there is a deep problem with predicting or creating a critical point, and this term alone is not capable of doing both. In a practical tone, Prado and Trebilcock simultaneously point out that deterministic critical points are probably too elusive to be useful to reformers.54 For our discussion here, however, the notion of critical turning point is less relevant, simply because old and new cultural factors refer to a relatively long period of development rather than a point. that indicates a specific point in time (see section below). According to Watson`s theory, a legal rule is transplanted simply because it`s a good idea.
Although Watson does not explicitly present a method for predicting the viability of a proposed legal transplant, his writings provide guidance for such a method. He also identified several factors that he believes need to be considered in determining whether conditions are ripe for a change in the law through transplantation. Regardless of the type of conceptualization chosen, legal borrowing has continued to increase with internationalization, globalization and European integration.35 While dissemination, borrowing, copying or legal transplantation take place, how it actually works and whether or not it produces the desired results is another matter entirely. Therefore, it may be that Ralf Michaels is right when he says that “we may have to reluctantly admit that Alan Watson is not as uninteresting as we describe him.” 36 Whatever we may criticize, the fact remains that the migration of law occurs everywhere, or as one scholar puts it: “Legal norms are extracted from one context, transferred and implanted in another, or wander beyond sometimes fluid borders, and so on. 37 In addition, it appears that belief in successful legal transplants is still part of comparative law research and, more importantly, national legal practice, and some scholars are attempting to define a methodology for successful legal transplantation.38 Comparative law has traditionally been considered a particularly useful practice for changing legal systems. Unlike the academic field of comparative law, comparative practical law refers to a utilitarian practice that can provide technical assistance for the development of a legal system. In particular, comparative practical law can be particularly advantageous for transitional systems in which foreign models are used as a means of developing one`s own law with the aim of modernising legislation or reforming institutions. Essentially, the adoption of laws and legal institutions from another country is used to improve its own legal system.1 As noted in the introduction, the concept of the rule of law depends largely on legal culture.
The nature of legal culture, on the other hand, depends heavily on legal history. When attempting to transplant an issue as divergent and multidimensional as the rule of law, the legal evolution path of a legal culture defines the limits of successful legal transplantation.93 Deep-rooted belief systems and entrenched patterns of right-wing behaviour are difficult to transform when embedded in a critical shift in legal culture that has occurred over a long period of time. The above analyses describe two different forms of legal-cultural path dependencies, with imperial China and contemporary Poland serving as illustrative examples. There are many examples of failed legal transplants. Interesting examples include: Philip Nichols, “The Viability of Transplanted Law: Kazakhstani Reception of a Transplanted Foreign Investment Code” (1997) 18 U Pennsylvania J Intl L 1235; Ahmad Alshorbagy, “On the Failure of a Legal Transplant: The Case of Egyptian Takeover Law” (2012) 22 Indiana Intl & Comp L Rev 237. Some important reasons why legal transplants are considered important are the need for authority, political reasons, the need for legislative reform, and dependence on political and economic motives, etc.
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