The Legal Transplant Doctrine and Comparative Jurisprudence


“[T]he law does not exist in a vacuum” - a maxim chanted by many when looking to implement legislative reform.1 The legal transplant doctrine is one way in which reform can be brought about by adopting the legal systems other jurisdictions. This essay begins by presenting a brief introduction to the legal transplant doctrine, in particular by looking at two competing and polarised interpretations presented by two equally distinguished scholars. It then considers how the case of Leyla Sahin v Turkey2 (Sahin) reflects upon the interpretations of legal transplants; also presenting a brief comparison with subsequent case law in a different contextual and societal setting. It is concluded that the case law has preferred a wider approach to the legal transplants doctrine. 

The Legal Transplant Doctrine

When looking to reform old laws or implement new ones lawmakers rarely start on a blank canvas. Instead, it is common practice to look to the laws of other jurisdictions to find suitable laws already enacted.

The doctrine of legal transplants has received expansive discussion from two established scholars; the subject of their discussion is where their agreements begin and cease. There is the wider approach favoured by Watson;3 in contrast with a narrower approach adopted by Kahn-Freund.4 Watson claimed that the lawmakers do not draw a connection between law and society but see a rule operating successfully in another jurisdiction and adopt it in their own jurisdiction.5 Kahn- Freund contests this theory, claiming that legal transplants are not the work of lackadaisical or lax carbon copying; but, instead, there is a relationship between law, society, and context and that the foreign influences on the laws of a nation are shaped by this relationship – adding that metaphors relating to the transplant of an organ should be limited to comparing the purpose of the doctrine of legal transplants and should not extend to the processes.6

Sahin – Facts and Implications

Sahin concerned a medical student at the University of Istanbul and a rule prohibiting wearing a headscarf; she claimed that such a rule was contrary to Article 9 of the European Convention on Human Rights (“ECHR”), which provides for a right to the freedom of thought, conscience, and religion. The defence stipulated that permitting the wearing of such religious symbols would be contrary to the principles of equality and secularism - the notion that the state and religion are separated – and the concept that religion is a declining value.7 Turkish views have subordinated religion in favour of modernisation from as early as the 17th century and these values remain strong as they compete with their European counterparts.8 Although it is equally true that not all Turks have embraced secularism; some still exercise traditional religious beliefs and practices.9

The majority of the ECtHR dismissed the case, with Judge Tulkens dissenting. It is evident that the majority paid close attention to the social and contextual background facts surrounding the claim.10 The relevant contextual considerations reflected a concern of growing political extremism due to a rise in extremist political movements with the imposition on society of their “religious symbols and conception of a society founded on religious precepts” – the Court held that such concern, where a religious symbol posed a threat, meant the imposed restrictions were appropriate to preserve secularism within higher-education institutions.11

The rule that applied, Article 9 ECHR, presents a topic of debate in relation to the discourse on legal transplants in that the rule was not made by the domestic lawmakers of Turkey but instead formed part of a set obligations prescribed by a supranational actor. Subsequently, the ECtHR has afforded a margin of appreciation to Member States (MSs). The margin recognises that rules will be interpreted differently within different MSs and the doctrine governs the extent to which the Court may scrutinise an interpreted and implemented rule.12 However, in the light of Sahin, there have been arguments that the margin afforded by the Court to the MSs is too wide.13 This criticism reflects the approach taken by the only dissenting judge, Judge Tulkens, who claims the margin was too wide and European supervision should complement such a margin – she also reminds that supervision should be greater where the margin is greater.14

The contextual considerations which the Court gives weight are clearer when comparing Sahin with a recent case, also concerning a complaint against restrictions which prohibit wearing a religious symbol: Eweida v United Kingdom.15 Eweida, an employee of British Airways, was asked to cover up her cross necklace; refusing to do this she was placed on unpaid leave. The case reached the ECtHR which, again ruling on Article 9, held the rule regarding the cross did violate the claimants rights, ruling that the balance between the claimant’s religious beliefs and the company’s desire for a particular corporate image had not been achieved.16 The decision in Sahin was cited in respect of the margin of appreciation to be afforded alongside the requirement for European supervision to complement such margins.17 Both cases had similar facts but different contextual situations led to two polarised decisions.


Sahin is indicative of a supranational belief that great care needs to be taken when applying a broad legislative enactment to a specific factual situation in a society with unique values. The slow and creeping move towards federalism has been met with stern opposition from certain MSs who have entertained the idea but expressed concern that more centralised decision-making, be it in the economic or social sphere.18 Perhaps this could disregard the heterogeneous makeup of the Union and the laws applied without a margin of appreciation could be ineffective at best and disastrous at worst. Sahin reflects a judicial understanding that laws, even those deemed as fundamental as is the freedom of religion, cannot be applied as carbon copies. In all, it would seem that the discourse in modern case law favours the approach of Kahn-Freund, accepting a relationship between law and society, over that of Watson.

1 Joan Church, et al. Human Rights from a Comparative and International Law Perspective (Unisa Press 2007), 44; Mark Gibney and Sigrun Skogly, Universal Human Rights and Extraterritorial Obligations (University of Pennsylvania Press, 2011), 168; inter alia.

2 [2005] ECHR 819.

3 Alan Watson, Legal Transplants: An Approach to Comparative Law, (University of Georgia Press, 1974). 

4 Otto Kahn-Freund, ‘On Use and Misuse of Comparative Company Law’ (1974) 37 M.L.Rev 1.

5 Watson, A. fn.3, 21-31.

6 Kahn-Freund, O. fn.4, 6-7.

7 Esin Örücü, ‘Diverse Cultures and Official Laws: Multiculturalism or Euroscepticism?’ (2010) 6(3) Utrecht.L.Rev 75, 83.

8 Ihsan Yilmaz, Muslim Laws, Politics, and Societies in Modern Nation States: Dynamic Legal Pluralisms in England, Turkey, and Pakistan (Ashton, 2005), 83.

9 Ibid, 112-113.

10 Leyla Sahin v Turkey, fn. 2, para 115.

11 Ibid, para 10.

12 Thomas A. O’Donnell, ‘The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights’, (1982) 4 Hum.Rts.Q 474, 475.

13 Tom Lewis, ‘What not to Wear: Religious Rights, the European Court, and the Margin of Appreciation’, (2007) 56(2) I.C.L.Q. 395, 408.

14 Judgement of Judge Tulkens, Leyla Sahin v Turkey, fn. 2, para 3.

15 [2013] ECHR 37.

16 Ibid, para. 5.

17 Ibid, para. 84.

18 Timothy Besley and Stephen Coate, ‘Centralized Versus Decentralized Provision of Local Public Goods: A Political Economy Approach’, (2003) 87 J.P.E. 2611, 2612. 

Law Tutors Online, UK Law Tutor, UK Law Notes, Manchester Law TutorBirmingham Law TutorNottingham Law TutorOxford Law Tutor, Cambridge Law Tutor, New York Law TutorSydney Law Tutor, Singapore Law Tutor, Hong Kong Law Tutor, UK Law Tutors and London Law Tutor are trading names of London Law Tutor Ltd. which is a company registered in England and Wales. Company Registration Number: 08253481. VAT Registration Number: 160291824 Registered Data Controller: ZA236376 Registered office: Berkeley Square House, Berkeley Square, London, UK W1J 6BD. All Rights Reserved. Copyright © 2012-2024.