[RG # 161] Constitutional Transplantations
November 1, 2019 – January 31, 2020
Anat Scolnicov (University of Winchester, UK)
This project will examine transplantation of constitutions and constitutional ideas from one country to another. Such transplantations have occurred both voluntarily (such as in Eastern Europe post-communism) and by imposition (such as in Japan after World War Two). This phenomenon raises both theoretical and practical questions. These include the role played by the existing culture and history of the country in receipt of constitutional provisions and ideas, and the extent to which external as opposed to internal constitution-making can lead to successful constitutional reform, particularly in the areas of democratisation and human rights protection.
A basic question looms: Is the endeavour of constitutional transplantation a worthy, or even a worthwhile, one? The replication of the constitutional text does not and cannot result in a replication of the constitution itself. The resulting constitution is a product of history, culture and religion as much as it is a product of the text.
Further questions emerge: When do constitutional transplantations succeed in producing the anticipated outcomes, and what are the conditions for that? Is it to the role of judges to affect constitutional transplantations? How can judges in their decisions justify borrowing from other constitutional systems? Do some constitutional systems provide a better template for transplantation than others? Can constitutional transplantation lead to democratisation and better protection of human rights?
Discussion of certain conceptual questions relating to this transplantation is currently missing in the literature. Such discussion has not just theoretical importance, but has important lessons for countries currently undergoing constitutional transition and reform (such as Nepal and Myanmar).