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22 - Constitutional Transplants

from Part V - Transnational Constitutionalism

Published online by Cambridge University Press:  30 September 2019

By
Gábor Halmai
Edited by
Roger Masterman  and
Robert Schütze
Roger Masterman
Affiliation:
University of Durham
Robert Schütze
Affiliation:
University of Durham
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Summary

This chapter investigates the problem of how the transplant and borrowing of foreign constitutional law and international law can influence constitution-making processes and constitutional interpretation – state actions which are still considered sovereign. International law, especially international human rights laws, are of pre-eminent importance in this context since they are virtually by definition based on limitations on national constitutional law to assert internationally shared constitutional principles. In other words, the chapter seeks to answer the question of how far the process of the internationalization of (national) constitutional law has progressed; to what extent are the framers of constitutions and the courts that interpret constitutions willing to accept alien, foreign, or international principles and rules? What underlies the decision by the constitutional organs of certain states to accede to such constitutional migration, and the rejection of such migration by their respective counterparts in other countries?

Type
Chapter
Information
The Cambridge Companion to Comparative Constitutional Law , pp. 580
Publisher: Cambridge University Press
Print publication year: 2019

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References

Further Reading

Choudhry, S., Migration As a New Metaphor in Comparative Constitutional Law, in Choudhry, Sujit (ed.), Migration of Constitutional Ideas (Cambridge University Press, 2006).Google Scholar
Davis, D.M., ‘Constitutional Borrowing: The Influence of Legal Culture and Local History in the Reconstruction of Comparative Influence: The South African Experience’ (2003) 1 International Journal of Constitutional Law 181.CrossRefGoogle Scholar
Dupré, C., Importing the Law in Post-Communist Transitions: The Hungarian Constitutional Court and the Right to Human Dignity (Hart Publishing, 2003).Google Scholar
Goldsworthy, J., ‘Questioning the Migration of Constitutional Ideas. Rights, Constitutionalism and the Limits of Convergence’, in Choudhry, S. (ed.), Migration of Constitutional Ideas (Cambridge University Press, 2006).Google Scholar
Groppi, T. and Ponthoreau, M.-C. (eds.), The Use of Foreign Precedents by Constitutional Judges (Hart Publishing, 2013).Google Scholar
Halmai, G., Perspectives of Global Constitutionalism (Eleven International Publishing, 2014).Google Scholar
McCrudden, C., ‘A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights’ (2000) 20 Oxford Journal of Legal Studies 499–532.Google Scholar
Rosenfeld, M., ‘Constitutional Migration and the Bounds of Comparative Analysis’ (2001) 58 NYU Annual Survey of American Law 67.Google Scholar
Siems, M., ‘Malicious Legal Transplants’ (2018) 38 Legal Studies 103–119.Google Scholar
Voeten, E., ‘Borrowing and Nonborrowing among International Courts’ (2010) 39 The Journal of Legal Studies 547–576.CrossRefGoogle Scholar
Watson, A., Legal Transplants: An Approach to Comparative Law (Scottish Academic Press, 1974).Google Scholar

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