Modern constitutions are resembling one another more than ever before in history. Are they, indeed, converging? This chapter explores this controversial question. Some argue that constitutional borrowing and transplantation of constitutional norms, structures, doctrines and institutions is a fact of life, regardless of ideological or theoretical objections to these practices others deny this and oppose the very idea of the existence of a common constitutional gene pool, bricolage and borrowing. A constitution is and should be a unique reflection of a countrys constitutional identity the latter group believes. A comparative analysis of elements common to all modern constitutions however shows a sizeable kinship relationship between them, whatever the objections we may have to that.

National judicial systems within the European Union (EU) face pressures toward alignment under the policy agendas for judicial cooperation connected with the Lisbon Treaty and the widespread practice of ‘transnational borrowing’ among courts. Using the CJEU and ECtHR as case studies in the phenomena of judicial culture and transnational judicial communication, this chapter explores how constitutional norms and formal policies interact with contextual influences (including informal judicial interaction and evolving national ideas and practices regarding judging and judicial organisation) to produce increasing legal alignment among the member states. In doing so, the chapter explicitly highlights the need to combine comparative legal analysis with socio-legal research methods in order to understand the evolution of constitutional law.

This chapter examines the contested concept of constitutional identity in the comparative constitutional law literature and situates it in the specific jurisdictional context of Nepal. In particular, the analysis concentrates on the foundational function of constitutions and explores the relationship between constitutionalism, identity politics, and constitutional design. Nepal is an ideal case study for exploring the notion of constitutional identity because it sits uneasily within the traditional taxonomies used in the discipline. For instance, Nepal is the only South Asian country that was never colonised and whose legal system does not operate in English, but in the country’s national language, Nepali. This unusual level of historical continuity in the process of nation-building has complicated the construction of constitutional identity, as demonstrated by the embattled historical relationship between the Shah-centered “national monarchy” and democracy, the enduring and controversial position of Hinduism in the constitutional framework, and the patterns of legal discrimination on the basis of identity that persist in the new 2015 constitution.

This chapter investigates the tremendous contribution of Justice Kalyan Shrestha to the creation of a distinctively Nepali constitutional identity, a contribution that has manifested itself primarily through Supreme Court-level constitutional adjudication aimed at negotiating and synthesizing autochthonous legal culture with international legal norms. Justice Shrestha’s legacy can also be identified in the Court’s administrative reforms. Moreover, the historical and political context of Justice Shrestha’s tenure is crucial to explain the impact of his work. The eleven years that he spent on the Supreme Court’s bench, between 2005 and 2016, correspond to a period of great political turmoil, profound constitutional transformation, and dramatic democratic change, which had a direct impact on constitutional litigation. The chapter analyses the leading cases that Justice Shrestha adjudicated on and the key administrative reforms of the Court that he spearheaded. The doctrinal analysis is bolstered by a series of in-person conversations with Justice Shrestha reflecting on the nature of his contributions to the Supreme Court of Nepal, and ultimately his legacy.

Fundamental rights and freedoms constitute the majority of agreed articles in the draft constitution produced by the Constitutional Conciliation Commission ‘Anayasa Uzlaşma Komisyonu, AUK’. This chapter analyzes the content of these articles and seeks to explain why the AUK was able to achieve more consensus on these than on other provisions ‘e.g., principles of state organization’. It argues that constitutional borrowing, both horizontal and vertical, served as an inspiration and consensus-achiever in the discussions. The agreed draft text contains provisions that are either constitutional novelties or offer more far-reaching protection than the existing constitutional framework. We particularly emphasize the normative authority the European Convention on Human Rights enjoyed in the deliberations and the role of human dignity as a foundational constitutional norm “borrowed” primarily from the German Basic Law. The chapter concludes that the draft chapter on fundamental rights and freedoms was neither an unequivocal success story nor a complete failure. Nevertheless, the constitution-making process remains a missed opportunity for democracy in Turkey.