ABSTRACT
Askanted thinking matters. By way of counterpoint to the principal theme of this volume perspicuously urging upon comparative legal studies to engage translation such as to overcome the woeful under-theorisation that continues to plague the field, I want to argue that there must remain situations where translation ought not to govern, where the prevailing motion rather needs to be one of circumspection, restraint and, indeed, avoidance. In other words, I claim that there are instances of overtranslation that must be eschewed. ‘Legal-origins’ theory, which emerged in the late 1990s, offers a prominent example of the predicament I wish to address (La Porta, Lopez-de-Silanes and Shleifer 1998, 2008; Glaeser and Shleifer 2002; Beck, Demirgüç-Kunt and Levin 2003). Briefly, proponents of this model defend the existence of isomorphs between traditionary legal allegiance and economic development. More specifically, they suggest that law can be recast in terms of economic indicators showing common law jurisdictions to be better at ‘doing business’ than countries hailing from the civil law world – this expression having become the title of an annual report produced by the World Bank since 2003 and purporting to offer a comparative ranking of local regulatory environments according to an ‘ease-of-doing-business’ index (World Bank 2004). The chief assumption informing ‘legal-origins’ theory in general and the World Bank’s Doing Business reports in particular is that law can unproblematically be converted into economics in order to generate ‘objective’ data, allowing for a comparative appreciation of the legal mercifully free of the ambiguity – the play – that otherwise characterises life-in-the-law.
