Legal transplants as tools for post-conflict criminal law reform: justification and evaluation

Abstract

The criminal law frameworks of countries that have been the subject of interna- tional peacekeeping operations and military interventions often reveal an urgent requirement for reform. The promotion of fair and effective justice systems, the rule of law and transition from conflict to peace frequently necessitates the intro- duction of new state legislation. Legal transplants have been employed as a legisla- tive tool to bring about post-conflict legal change. However, the use of transplanted law in these situations has been controversial and has raised concerns about the jus- tification for adopting it. This paper examines the justification for employing legal transplants to develop new post-conflict criminal laws by assessing their practical utility and the motivational rationale for employing them. It reviews theoretical perspectives on transplant feasibility and reflects on the experience of previous criminal law legal transplants. The article concludes by proposing an evaluative test for prior application to post-conflict criminal legal transplants to assess their prospects of success and to gauge the necessity for later change and adaptation.