Schauer, Frederick. "Legal Development and the Problem of Systemic Transition." KSG Faculty Research Working Paper Series RWP03-025, April 2003.

Abstract

There is a large literature on legal transitions, mostly focusing on the allocation of the cost of legal change in areas such as taxation and the taking of property by eminent domain. Another literature looks at precedent and rules, exploring the legal system’s own internal constraints on legal change. Yet there has been less attention on systemic legal change, in which entire legal systems change. When we look at systemic change, however, whether in post-colonial Africa and the Caribbean in the 1960s and 1970s, in Eastern Europe in the early 1990s, in South Africa in the mid-1990s, or in countries such as Vietnam now, it turns out that legal systemic change has often been slower and less consequential than the political and economic changes in the same societies. In searching for the causes of the comparative resistance of law to change, we find that a range of impediments including the staffing of legal systems, the disproportionate preference for stability among external forces, and the nature of legal thought produce a degree of path dependence and resistance to change that are different for legal transition than for political and economic transition.