Should we bid a fond farewell to the legal transplants ‘theory? the theory of legal pollination through the lens of a legal sleeping beauty (mediation)

Abstract

The intrepid Portuguese sailor Jorge Álvares led the maritime convoy towards the uncharted Far East aimed at establishing trade relations with the Imperial China in 1514. In so doing, he marked the first encounter between glaringly different civilizations and starkly different cultural backgrounds/legal cultures. This can be hailed as the inception of a bedazzling legal dualism, which has traversed centuries of Macau legal history and still ripples forward. Fast forward to the nineteenth century, the Portuguese – further the decaying of the Qin dynasty – seized the opportunity to exert control over Macau while imposing their own laws and wiping out Chinese laws in the process. Like they were never able to do before. A plethora of changes took place thereafter. Leveraging on the «new illuminist winds», which were sweeping across all Europe and beyond, Portugal inscribed in its Constitution that Macau was part of the United Kingdom of Portugal, Brazil and the Algarves (Reino Unido de Portugal, Brasil e dos Algarves) (pursuant art. º 20/III of Portuguese Constitution of 1820). Such an historical event marked the outset of a movement of legal pollination, which would overhaul Macau´s legal landscape forever. Consistent with the overarching idea of Macau-as-a-part-of-Portugal, the Portuguese Penal Code of 1852, the Civil Code of 1867, the Civil Procedure Code of 1876 and the Commercial Code of 1888, have been extended to Macau. Such a batch of drastic changes inflicted upon Macau´s legal landscape sparked the outset of Portuguese «colonial/legal domination» and prompted both the emergence of legal dormants (as Chinese laws were swept aside) and cultural divergence with law (as both the Confucian normative system («Rites») and Chinese customary mediation were slowly submerged by the ceaseless stream of Portuguese bodies of laws) accordingly. To this day, they both stand as sleeping legal beauties in the remit of Macau´s legal landscape. Against this background, this paper seeks to demonstrate that the current legal landscape in Macau (mirrored on the prominence of court adjudication over amicable means of solving disputes, a hallmark of Chinese legal culture) can be traced back to the botched/watered down legal pollination undertaken by the Portuguese back in the ninet century. This paper accordingly challenges the validity of the legal transplants´ theory.