From Diffusion to Transplant. Let's Talk about Metaphors...

LORENA POBLETE

Princeton

Seminario; Fung Global Fellow Program Internal Seminar, Princeton University; 2014

Princeton Institute for International & Regional Studies, Princeton University

At our previous meetings, we discussed what diffusion theory seems to be able to explain and what it leaves behind. Perhaps another way to analyze the potentialities and limitations of diffusion theory would be to look at what the diffusion metaphor implies. This is the type of exercise that Teubner and Örücü propose in their articles. In Comparative Law, the legal transplant metaphor has become quite common over the last 30 years. If I bring this debate to our table, it is not only because our meetings are somewhat like parties "a la canasta", as we say in Argentina- to which each brings what he or she might have in the fridge, but also because this debate is related to our interests in two ways. First, Legal Transplant Theory focuses on the study of the last step of the diffusion process, on the effects of that process on the diffusion of legal institutions, and there are several points in common here with diffusion studies. Second, the debate about this particular metaphor can be taken as an invitation to think about the implicit assumptions carried by other metaphors frequently used in diffusion studies, such as "spread," "billiard balls," "bubbling up," "snowflakes," "contagion," "coercion," "emulation," "race to the bottom," "Chinese whispers," "osmosis" and so on and so forth. My suggestion is to question the metaphors.Historically, figurative language has always been part of scientific writings. The social sciences in particular have borrowed metaphors from other disciplines including physics, chemistry, biology and astronomy. A metaphor is a figure of speech, but it can also be thought of as a creative form that produces its effect through a juxtaposition of images. By establishing analogies between words that belong to different conceptual domains -a transfer of meanings- the metaphor is used to name what cannot be said. Various types of metaphors are used in the prose of the social sciences, some of them very complex and, strictly speaking, composed of several metaphors that allow the association between two different processes. One example of this type is the "Chinese whispers" metaphor used for policy diffusion. This particular game has its own rules, and when used as a metaphor, some features of the game are transferred to the diffusion process. Simple words as well, when used in a context that is not typical for them, can function as metaphors. This is the case of "coercion" when used to refer to a diffusion mechanism. The power of the metaphor depends on its capacity to connote an idea, and so metaphors arise as a way to express complex ideas. In this sense, they appear to be a solution. However, they can produce the opposite effect, narrowing the range of ideas associated with a specific phenomenon and presenting only a very partial view of it. This is when metaphors become much more of a problem. Some metaphors can even act in both ways, aiding understanding and yet restricting it. And this dual effect might happen at different moments rather than simultaneously; overuse of a good metaphor can result in the misunderstanding of a phenomenon. This, perhaps, is the case with "legal transplant" metaphor. In the first two versions of the theory, "transplant" is used to explain the possibility of legal transfer, while elsewhere it describes changes that occur in the legal object transferred. Due to the acceptance of Montesquieu´s principle (the necessary relationship between society and law), this medical metaphor helps to explain why the object transferred can be rejected or strongly modified in the reception society. But when legal scholars add new questions about the conditions of transfer and the success of the process, the idea of the "donor" and the skills of the "doctors" performing the transplant become problematic. Other questions also arise in the discussion: How can compatibility between the donor and the receiver be confirmed? How will that be tested? Are different legal systems compatible because they belong to the same family? Which experts are allowed to perform the transplant: international lawyers, international or local judges, international organizations, local policymakers, the media? And given the existence today of a black market for organs, can we expect the existence of a black market for laws? It seems that the existence of a market can be presumed, at least. We can also ask: What happens at the point of origin when a law or legal institution is transplanted? Is a legal transplant more like a heart or cornea transplant? A kidney transplant? As Nelken states: "Can the owner ask for his "borrowed" legal institution back again?" The answers to these questions conceal various implied assumptions. If we can explain -as Watson does- the transfer of the Roman Code to the Scottish legal system using a corneal transplant metaphor, is it preferable to talk about kidney transplants when considering contemporary legal transfers? Should we not think about organ transplants at all? In a critical article about Legal Transplants, Nelken asks (questioning Teubner's argument): "What is it for a metaphor to be misleading?" One possible answer to this question could be that, because a metaphor is subject to interpretation, it can be over-interpreted or narrowly understood. Since it is difficult to establish a solid interpretation of a metaphor, then metaphors might always be misleading. If by definition a metaphor is a figure with an open meaning, then the question is: How can we control the many possible connotations to which it gives rise? Personally, I think that perhaps the problem lies here. The power of connotation serves to explain the uselessness or at least the problematical nature of using metaphors as a tool for scientific explanations.In his article, Nelken also raises more general questions related to the use of metaphors in the social sciences: "Can metaphors be avoided? What is the persuasive force of metaphors? Are metaphors just a way of stimulating thought or can they form part of controllable scientific conceptualization?" Answers to these questions can be found in Gareth's proposal. According to this author, scientific inquiry is ?a creative process in which scientists view the world metaphorically, through the language and concepts which filter and structure their perceptions of their subject of study and through the specific metaphors, which they implicitly or explicitly choose to develop their framework for analysis. The creative potential of metaphor depends upon there being a degree of difference between the subjects involved in the metaphorical process. Sometimes, a single metaphor cannot capture the totality of a phenomenon, which is why different metaphors can be used at the same time, their meanings even overlapping, when studying the same topic. Gareth argues that "schools of thought in social science, those communities of theorists subscribing to relatively coherent perspectives, are based upon the acceptance and use of different kinds of metaphor as a foundation for inquiry." Following Gareth, and taking Bourdieu's field theory into account, discussions about metaphors in Legal Transplant studies, and in diffusion as well, can be interpreted as a fight to establish the hegemony of one particular metaphor in the "champ". Whether or not this may be true, when accepting or rejecting a metaphor, it is still nevertheless necessary to analyze the implicit assumptions behind it.Contesting the idea of single-source diffusion processes and convergence in the results, Kingler-Vidra and Shleifer proposed the Chinese Whispers game as an illustration (or as a metaphor) of a more complex diffusion process: the chain mode of diffusion. In this model "innovation is transmitted from one adopter to the next and so on. This means that late adopters have no direct contact with the initial source and may even be ignorant of it." To avoid misinterpretation, the authors explain the game, and in so doing, they limit the extent of the connotations of this metaphor.This metaphor seems useful for describing a more complex diffusion process in which, even if there is a single (initial) source, it is possible to understand the changes to the policy during different steps of the process. The door is also open to analyze who the players are, and why they may not be able to, or may not intend to, repeat the message correctly without transforming it. When is the transformation the consequence of an error and when is it the result of a deliberate action? Since this game does not have winners or losers, any intention to change the message must have a different explanation. Although this metaphor seems to be very rich, it does not explain why one particular message is delivered at the end of the string. Therefore, neither emulation nor learning can be included in the analysis. Every metaphor opens certain doors in a way that allows us to study new aspects of a subject. But at the same time, it closes others. The invitation here is to talk about metaphors, analyzing in each which doors are opened and which are closed.