The recent special issue of International Journal of Migration and Border Studies, “Comparative Migration Law: Methods, Debates and New Frontiers,” features a diverse set of perspectives on the study of migration law. This jot specifically covers Daniel Ghezelbash’s excellent contribution to the issue, Legal transfers of migration law: the case for an interdisciplinary approach.
The article argues for a more expansive dialogue between legal scholarship and other disciplines to fully capture the intricacies of contemporary migration policy transfers. As Ghezelbash notes, legal transfers (also known as diffusion, transplants, borrowing, migration, or translation, among other things) involve the movement of a law between countries. The field’s pioneer was Alan Watson; in 1974, he controversially described “legal borrowing” as perhaps the most significant source of legal change, especially in the Western world. Whatever its validity as to other fields, Ghezelbash agrees that migration is a particularly fertile field for legal transfers, for two main reasons: (1) the interconnectedness of migration laws (in that, like trade in goods and services, a migration act necessarily implicates at least two, and usually many more, countries) and (2) the shared constraints faced by states in designing migration laws under international law.
Ghezelbash critiques both traditional and contemporary approaches to legal transfer literature. The traditional approach focused on the transfer of complete legal systems, usually in colonial contexts. In contrast, the contemporary approach recognizes that transfers often involve discrete rules or policies rather than whole systems. Ghezelbash challenges the traditional assumptions, recognizing that modern legal transfers often involve adaptation and change, with multiple jurisdictions and non-governmental actors participating in the process. These transfers are not mere copies; they are adapted to fit the local context, sometimes through policy, programs, executive orders, or judicial decisions, rather than formal legislative acts.
The article’s main contribution is Ghezelbash’s proposed framework for using interdisciplinary methods to (1) identify legal transfers; and (2) assess their success. As to identification, he outlines four steps: identifying a common policy problem, comparative analysis, seeking physical evidence of transfer, and conducting interviews with key agents involved in the process. Ghezelbash highlights the challenges of identifying causation in transfers. Here, the fact that two countries have provisions that are similar, either textually or functionally, does not imply that one caused the other. Of course, causation is an issue with which both social scientists and lawyers regularly grapple, albeit in different contexts and using different methods. In essence, Ghezelbash is describing a form of process-tracing, a term well-known to social scientists, especially those doing qualitative work, but probably somewhat less familiar to most legal scholars.
When assessing the success of legal transfers, Ghezelbash urges moving beyond the “law as culture”/“law as positive rules” schism to adopt a more practical approach. Success should be viewed in terms of whether the transferred law fulfills its intended function within the new context. To measure this success, Ghezelbash notes the existing multidimensional framework, which considers programmatic, political, and process success. To these, he would add legal success, which considers whether a transferred policy has been validated, invalidated, or otherwise distorted by courts based on controlling domestic or international law. Indeed, judicial ratification is an important feature that fields outside of law, namely, political science and public policy, have often overlooked.
Ghezelbash concludes by answering the “so what” question: why study transfers of migration law? His answer is partly similar to what some others have said about the comparative study of migration law generally: first, by comparing similarities and differences in “legal cultures and institutions,” we can test various hypotheses about policy effectiveness advanced by migration scholars. Second, doing so will aid in advocating for fairer or otherwise improved migration and refugee law policies. Ghezelbash concludes by advocating for research that contributes to the transfer of best practices and reforms in migration law, underlining the need for a clear and transparent framework for success to support such advocacy.
Ghezelbash’s article is a valuable contribution to the growing body of work seeking to integrate social-science methods into the study of international and comparative law. I hope migration law scholars and practitioners from all disciplines and perspectives will take the chance to read it and incorporate its suggestions.
