Chapter 1 showed the boundaries of the current debate on the diffusion of law and explained the limits of the most influential works in the area. It also introduced the contribution of this study to the comparative discussion. The present chapter develops this. In particular, it addresses the theoretical grounds for explaining the process of legal change through the appropriation of foreign legal paradigms and ideas. In doing so, it focuses on the notion of ‘hybridity’ as shaped in postcolonial studies, and tests it against a number of possible applications, as well as in ‘pseudo-colonial’ situations outside the modern imperialist pattern. A clarification of the impact and relevance of this investigation within the specific debate on legal borrowing will be provided in the next chapter.

The Concept of Hybridity

Foundation

The term hybridity originated in the mid-nineteenth century in the context of biological and evolutionary debates to describe a cross between animal or plant species. Although it has also been occasionally used as a metaphor to indicate a lack of racial purity, the term today defines a research theme in cultural and postcolonial studies involving ‘processes of interaction that create new social spaces to which new meanings are given’.

The Theoretical Background

The concept of cultural hybridity is usually associated with the pioneering works of Homi Bhabha who attempted to overcome the rigid dualist perception of culture in the colonial contexts that neatly distinguished between colonisers and colonised. Bhabha, developing the ‘orientalist’ discourse initiated by Said, essentially criticised the conventional way of binary thinking whereby the inhabitants of a colonised region are regarded as either colonial or indigenous.

The claim for a hierarchical purity of cultures is untenable in colonial situations. So is the picture of a rigid process of acculturation where one group becomes more like another by borrowing discrete cultural traits. Rather, there are areas of ‘in-betweenness’ of people and their actions, and it is the ‘in-between’ space that carries the burden and meaning of culture.

The Contents and the Effects

Building on the above-mentioned findings, Bhabha suggested that the notion of cultural hybridity expresses the result of cross-cultural exchange or ‘the effect of an ambivalence produced within the rules of recognition of dominating discourses as they articulate the signs of cultural difference’.