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2 Developing a Decentred Analysis of Legal Transfers

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Chapter Summary

This chapter develops a theoretical explanation for the transfer of laws into socialist transforming states in East Asia. Legal transfers are one of the main mechanisms used by these states to develop their domestic legal systems. Three main themes are discernible in the socio-legal transplantation literature: legal evolution, limited legal autonomy and legal autonomy. The chapter evaluates the capacity of theories based on Western experiences to explain legal transfers into socialist transforming East Asia, and compares and contrasts the main theoretical explanations for legal transfers. It discusses a case study about legal transfers in Vietnam to evaluate the capacity of the working assumptions to explain the interaction between imported and local legal thinking, beliefs and practices. The chapter concludes that we cannot easily recognise Vietnamese legal development in state-centred theories about legal transfers because such theories posit misleading criteria about how legal transfers interact with local regulatory practices.

Keywords: East Asia; legal borrowing; legal evolution; legal transfers; limited legal autonomy; Vietnamese legal development



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