LEGAL TRANSPLANTS THROUGH THE PRISM OF LEGAL POSITIVISM

Abstract

The article provides a theoretical and methodological analysis of the relationship between the legal transplants approach and the tradition of legal positivism within the context of contemporary comparative law. The relevance of the study is due to the intensive processes of legal globalization, which contribute to the active borrowing of legal norms, institutions and ideas between national legal systems, and also exacerbate discussions about the nature of law, the mechanisms of its development, and the role of the socio-cultural context in legal changes. At the centre of the analysis is the concept of legal transplants formulated by A. Watson, which proceeds from the assumption of the relative autonomy of law and the possibility of transferring legal norms between different legal systems without substantial transformation of their content. The article demonstrates that this position has clear points of convergence with legal positivism, in particular through its norm-centred approach, disregard for extra-normative factors, and emphasis on the formal determinacy of law. At the same time, it is argued that reducing the legal transplants approach to a positivist paradigm is methodologically simplistic and does not reflect the full complexity of this phenomenon. Special attention is paid to the scholarly debate between proponents and critics of legal transplants, including an analysis of the arguments advanced by P. Legrand, who identifies this approach with legal positivism and criticizes it for ignoring the cultural dimension of law, as well as the position of M. Graziadei, who rejects such identification and emphasizes the supra-positivist character of legal borrowings. The article substantiates the claim that legal transplants encompass not only formally enacted norms, but also doctrinal ideas, styles of legal thinking, and interpretative practices that extend beyond the boundaries of classical positivism. The results of the analysis demonstrate that the legal transplants approach cannot be unequivocally interpreted within the framework of any single classical theory of law. It combines elements of normative analysis with the recognition of complex processes of semantic transformation of law, which allows it to be regarded as an autonomous methodological direction in comparative law. The conclusions drawn are significant for the further development of legal theory, the methodology of comparative legal research, and the understanding of legal reforms in the context of Ukraine’s European integration.