Constitutional Transplants, Borrowing, and Migrations

Abstract

Comparative legal studies have much to offer, at both conceptual and normative levels, for thinking about legal borrowing in general. Understanding the many dangers associated with borrowing in the constitutional context — dangers involving misunderstanding, exclusion, or limitations of self-government and democratic experimentalism — is enhanced by recourse to the traditions and formative debates of comparative law. Perhaps more than anything else, such recourse can help to infuse the field of comparative constitutional law with a much-tested comparative sensibility — that ‘usefully enabling condition of intellectual activity’. This article is organized as follows. Section II discusses terminology. The choice of metaphors is central to comparative private and constitutional law and should be the starting point for an overview of the topic. Section III introduces the transplants debate in comparative private law and discusses the distinction between private and public, specifically constitutional, law. Section IV is a prolegomena to an anatomy of constitutional transplants that draws, whenever possible, on the resources of comparative private law. It includes an analysis of the object of constitutional transplants, their timing, motivations, and patterns. Section V discusses the justification of constitutional patterns in the context of the use of foreign law in constitutional adjudication as a specific form of constitutional borrowing. The article concludes with a brief meditation on the topic of constitutional convergence.