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Since the 1970s, comparative law scholars have studied “legal transplants”: legal institutions that emerged in one location and then were moved to (or forced upon) another. This research agenda offers little traction on one of today’s most pressing questions of global legal change. For several decades, Chinese leaders have encouraged Chinese enterprises to increase their international engagement. Those leaders insist that they have no desire to alter the legal systems of their economic partners, but China’s growing global economic presence does seem to affect legal systems elsewhere.
To make sense of this pattern, this Article draws on and extends Gunther Teubner’s concept of a “legal irritant.” It introduces the idea of a “policy irritant”: a policy that a country implements, inspired by policies elsewhere, that places pressure on and potentially reshapes the country’s legal regime. To demonstrate how the concept of a policy irritant improves our understanding of theoretical questions about legal change and concrete questions about current global conflicts, this Article offers a case study of the Madaraka Express, a China-funded railroad project in Kenya.
From a theoretical perspective, the Article makes two contributions to the literature on legal transplants. First, it reveals that policy emulation can catalyze legal change. Second, it observes that policy emulation can result in changes both to the recipient legal system and to the policy being emulated. At a more concrete level, the Article offers two insights into China’s engagement with the Global South. First, the introduction of China-inspired policies caused controversy in Kenya not because those policies were inherently insidious, but because they rubbed roughly against features of Kenya’s legal system that many Kenyans value highly. Second, Kenya’s legal system has shown strength in the face of pressures introduced by China-inspired policies, and has in some instances forced changes in those policies.
