Cultural Barriers and Possibilities in Legal Transplantation between Sharia-Based Criminal Law and Professional Law in the West
Subject Areas : Journal of Cultural ManagementHamidreza asimi 1 , امیر baran 2
1 - Lawyer
2 - , MA. in Law, Jurisprudence and Private Law, University of motahari, Tehran, Iran.judge
Keywords: Legal Convergence , Legal Culturalism , Criminal Justice System , Functionalism , Legal Hermeneutics,
Abstract :
According to the belief of many comparative legal scholars, legal transplantation has been the primary driver in the development and growth of legal systems in countries. From this perspective, legal systems, often disregarding other fields and autonomously, due to their shared experience of similar problems, initially seek answers by turning to other related legal systems. In contrast, proponents of legal culturalism and a hermeneutical approach, relying on the intertwining of criminal justice systems with a wide range of cultural, religious, and other interpretive difficulties and the diversity of legal elements, insist on the complexity or even the impossibility of successful legal convergence. Moreover, the transfer of institutions from one legal system to another not only fails to bring about the desired changes and reforms but also strengthens the domestic legal frameworks against external influence. Using a comparative analytical approach and drawing on a literature review, this article attempts to demonstrate the challenging nature of understanding convergence and why, due to the non-secular nature of sharia-based criminal law, successful convergence with Western systems seems unlikely. In the event of convergence, it will ultimately lead to a form of conservatism and greater resistance, marked by the introduction of foreign reforms.