Constitutional Transplantations

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[RG # 161] Constitutional Transplantations

November 1, 2019 – January 31, 2020

Organizer:

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).

Members

Francois du Bois

Francois Du Bois

FELLOW
University of Leicester

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Francois du Bois is Professor of Law at the University of Leicester in the United Kingdom. He has a long-standing research interest in both legal transplantation and the horizontal application of constitutional/fundamental rights. Most recently, he has explored these themes in journal articles and book chapters which have analysed the impact of the UK Human Rights Act and South Africa’s post-Apartheid Bill of Rights respectively on English and South African contract law and tort law. His books include Dignity, Freedom and the Post-Apartheid Legal Order (2009) with Jaco Barnard and Drucilla Cornell; Justice and Reconciliation in Post-Apartheid South Africa (2008) with Antje du Bois-Pedain; and The Practice of Integrity: Reflections on Ronald Dworkin and South African Law (2005).

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Thomas Horsley

Thomas Horsley

FELLOW
University of Liverpool

Thomas Horsley is a Senior Lecturer at the University of Liverpool. He completed his PhD thesis at the University of Edinburgh (2009-2011), funded by the UK Arts & Humanities Research Council. He was appointed Associated Head of Department in 2019.

 

Thomas specialises in EU and UK constitutional law with a particular focus on theorising the relationships between constitutions and institutions. He has published widely in leading international journals and edited collections. His first monograph, The Court of Justice of the European Union as an Institutional Actor: Judicial Lawmaking and its Limits, appeared with Cambridge University Press in 2018.  It interrogates the function of the EU Treaty framework as a source of normative restraint on the Court of Justice and, more specifically, its interpretative choices as an institutional actor within the Union legal order.

 

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Thomas engages proactively with key stakeholders. In 2017, he was invited by the European People’s Party to speak at the European Parliament on the challenges of managing Brexit. He has previously given evidence to the House of Lords EU Select Committee (2015). His research also been cited in several UK Government reports. In 2014, he was appointed UK rapporteur at the XXVI FIDE Congress hosted by the University of Copenhagen. Thomas also regularly offers expert reaction to national and international media (incl. BBC News and CTV News) on major legal developments in EU and UK constitutional law. 

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Han Zhai

Han Zhai

FELLOW
Wuhan University

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Han Zhai, Ph.D (2017), Tilburg University, is the lecturer of constitutional law at Wuhan University, China. She holds an LL.M of the Chinese University of Political Science and Law and an LL.B of Inner Mongolia University. The edited version of her PhD thesis, Constitutional Identity of Contemporary China: the Unitary System and Its Internal Logic, will be published by BRILL in late 2019. Her proposed research in the 2019-2020 Research Group 'Constitutional Transplantation' is on the constitutional fate of post-war East Asia.

She is also an invited research fellow in the 15-country comparative project Government by Algorithms: A Comparative Analysis of How New Technologies Changes and Influenced the Administration and Judiciary since 2018, initiated by Leiden University and the Société de Législation Comparée. She works as the executive editor of the collected translation series Contemporary China in the overseas studies since 2018, established by the Central Institute of Socialism, China.

In the early career period, her research topics include

·         Comparative constitutional law: socialist constitutional legacies, regional constitutional orders in the post-WWII era, the internal vulnerability and openness of the 'reforming' constitutions

·         Constitutional politics: party law, secession and regional independence

·         Chinese constitutional history of the reform era: the CCP's epistemological understandings on the concepts of constitutional law and legalism, the constitutional implications of the developing fiscal system in contemporary China

·         Research methodologies and professional ethics: defining the post-1978 constitutional law scholarship in China, methodological approaches in studying constitutional issues in a realistic context.

Contact information: hzhai@outlook.com

 

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Lorenzo Zucca

Lorenzo Zucca

FELLOW
King’s College London

 

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Lorenzo Zucca is Professor in Law & Philosophy. Lorenzo's special interests span from human rights law and philosophy to constitutional theory, with a focus on the relation between Church and State. 

He's now working on a project entitled 'The Uncertainty of Will,' which explores Shakespeare's vision on the connection between power and knowledge and examines its psychological and philosophical insights on human cognition and human institutions. 

He is the author of Constitutional Dilemmas- Conflicts of Fundamental Legal Rights in Europe and the USA (OUP, 2007) and numerous articles on human rights law and theory. His second monograph is entitled A Secular Europe: Law and Religion in the European Constitutional Landscape (OUP 2012). This is a study of one of the most pressing problems in Europe and includes issues such as the protection of religious freedom, the limits of religious toleration, and a wider debate on European identity.

 

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