On successful Legal Transplants in a Future Ius Commune Europaeum

The success of a transplant is measured by what it achieves, and this for Smits is uniformity. For Smits, the aim is to establish a new private law for Europe and the main role for comparative law is in the supplying of an answer as to how to establish this, which he sees as the main methodological question of European private law. This piece makes the claim that uniformity can be achieved in an organic bottom-up way by the competition of legal rules, transplanting rules through a 'market of legal culture', for which national courts should be responsible. According to Smits success is in organic growth. He challenges those who claim that legal transplants do not lead to uniformity, and assesses the internal and external factors influencing legal transplants. Like Nelken and Orucu, and also Foster and de Cruz, Smits discusses, compares and contrasts the views of Watson, Legrand and Teubner. The author claims that the use of legal transplants is the most promising way to build a European ius commune if national courts are allowed to choose the most suitable rules. However, diversity of law will remain in Europe and any centralist imposition will strangle diversity. This piece also paves the way for van Gerven's contribution.Smits is not so much interested in the process of, or the reason for, transplants, as in their results. He claims that past transplants have been successful and have led to uniform law and the future European ius commune will largely use legal transplants, which will again lead to uniform law. The contribution presents a programmatic approach to European private law and empirical evidence, through the areas of contract and property (trust), of successful legal transplants. Unlike Nelken and Orucu above, Smits' criterion for assessing the success of a transplant is the creation of some degree of uniformity between the laws of the importing and exporting countries. Mixed legal systems, for Smits, present the answer, a 'mix of national mentality and European uniformity'.He tests his ideas through commercial contract law and property law in Europe because transplants were successful, and no uniformity is seen in property law because there is a lack of successful legal transplants in this field. The acceptance of trust-like arrangements in civil law countries in recent years is, according to Smits, one result of the increasing globalization of world trade. This is also shown as an unsuccessful transplant, since the institution of the trust changed while it moved into the civil law countries from its common law environment. Here the reader might also like to consider the contribution by Raffenne. According to Smits, what is important, then, is the environment of the transplanted rule, international or national. He looks at South Africa and suggests that the transplanted law should be seen by the legal elite as suitable to the environment of the importing country.The environment into which the foreign legal rule is imported is the external factor. The internal factors are approached through the concept of 'path dependence'. The socio-economic environment (that is, the external factor) may favour legal transplants, but the type of rules (that is, the internal factor) may prevent the uniform law from materializing and vice versa.In this contribution legal transplantation is seen as the most promising way of establishing a European ius commune and the test of success is seen as uniformity and tension to be resolved by national courts. We must accept that diversity will remain. But is this indeed just as good as uniformity?.