Neither Parochial Nor Cosmopolitan: Appraising the Migration of Constitutional Ideas
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00694.x |
| Date | 01 March 2008 |
| Published date | 01 March 2008 |
REVIEWARTICLE
Neither Parochial Nor Cosmopolitan: Appraising the
Migration of Constitutional Ideas
Jo Eric Khushal Murkens
n
S. Choudhry (ed), The Migration of Constitutional Ideas,Cambridge: Cambridge
University Press, 2006, 458 pp, hb d50.
The Migration of Constitutional Ideas (MOCI) is the outcome of an international
conferenceat the University of Toronto in October2004. Its method andcontent
are as much a re£ection of the legal processes of globalisation as an exercise in
comparative constitutional law, and the present article will review it from the lat-
ter perspective. Comparativelaw operates on a macrolevel(legal systems,cultures,
families, and styles)
1
as well as on a microlevel (legal rules, principles, institutions
and problems).
2
MOCI contributes largelyat the microlevel and sits comfortably
with the literature on constitutional borrowing,
3
although Sujit Choudhry (the
editor) prefers the metaphor of ‘migration’.
4
Unlike ‘borrowing’, ‘transplant’, or
‘cross-fertilisation’, the concept of migration ‘grants equal prominence to the fact
of movement of constitutional ideas across legal orders, as well as to the actual
ideas which aremigrating’ (20).‘Migration’ can occur openlyor obliquely. Unfor-
tunately, having defended the use of ‘migration’ at some length, the editor fails to
ensure consistencyof usage throughout the contributions. Goldsworthy refers in
passing and on the same page to both ‘cross-fertilisation’ and ‘borrowing’ (115).
Rosenfeld and Sajo
¤use both ‘legal transplantation’ (142, 174) and ‘importation’
(142,176,177). Gross prefers to talk about ‘constitutional copying’ (403).
That inconsistency aside, the volume consists of ¢fteen contributions in four
discrete blocks on: i) the methodology ofcomparativism; ii) convergence towards
a liberal-democratic model; iii) comparative law, international law, and transna-
tional governance; iv) comparative constitutional law in action ^ constitutional-
ism post September 11. It contains legal materialfrom diverse jurisdiction (e.g. the
n
Law Department,London School of Economics.
1 See K. Zweigert and H. K˛tz, An Introductionto Comparative Law, 3rd edition (Oxford: Clarendon
Press,1998)Part I;W. Menski, Comparative Law in a Global Cont ext:TheL egal Systemsof Asi aa nd Africa
(Cambridge:Cambridge University Press,200 6);H. Patrick Glenn, LegalTraditions of theWorld: Sus-
tainableDiversity in Law,3rd edition (Oxford: Oxford University Press, 2007).
2 See N. Dorsen et al, Comparative Constitutionalism: Cases and Materials (St Paul: West Publishing,
2003);J. Goldsworthy (ed), Interpreting Constitutions:A Comparative Study (Oxford: Oxford Univer-
sity Press, 2006).
3 See the ‘Symposium on Contextuality & Universality: Constitutional Borrowings on the Global
Stage (1999) (3) Universityof Pennsylvania Journal of ConstitutionalLaw; and the‘Symposium on Con-
stitutional Borrowing’, edited by Barry Friedman and Cheryl Saunders in (2003) 1(2) International
Journal of ConstitutionalLaw 177et seq.
4 See also F. Schauer,‘On the Migrationof Constitutional Ideas’ (2004^5) 37Connecticut Law Review
907.
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71 (2) 3 03^319
United States, Hungary, SouthAfrica, Hong Kong, and the European Union), on
a multiplicity of subjects (same-sex marriage, hate speech, anti-terrorist legisla-
tion), and discussions fromdi¡erent disciplines (comparative law and politics, cul-
tural studies of law).
For the purposes of reviewing the volume,however, I have decided on a di¡er-
ent structure. The migration of constitutional ideas (as Choudhry would agree)
requires a reconceptualisation of comparative law, a move which raises three fun-
damental theoretical issues.The ¢rst issue relates to the legal system and to the
waycomparative lawimpacts on its integrity: can a coherent legal system cope with
the migration of constit utional ideas through a comparative approach to constitu-
tional law? In other words, can a legal system permit comparative engagement i n
order to decide hard cases and to ¢ll gaps when national positive law is insu⁄-
cient? If this question is answered positively, comparative law is given formal
recognition by the legal systemwhich it otherwise lacks. The second issue (which
is independentof the answer that is given to the ¢rst) addresses legal actorsand the
legitimacy of the comparativemethod.The legitimacyof judicialdecisions depends
on the judges’ interpretative methodology: courts must justify any recourse to
non-state law. So, can national legal actors (judicial bodies, policy makers, draft-
spersons) justify the recourse to comparative law for the purposes of constitu-
tional and statutory interpretation, legislative change, and institutional design?
The answer to this question has implications for current conceptions of democ-
racy and sovereignty, as well as for the sociology of law. A culturally-sensitive
inquiry needs to ask whether it is appropriate to‘import’ foreign legal ideas into
the national legal arena if it means divorcing those ideas from the cultural context
in which they originated. The ¢nal issue relates to the legal academy and the
scholarly value of comparative law.What epistemological insights can be gained
from engaging in comparative analysis? Is it a necessary exercise in order to
keep the law up to date and to promote justice? Or is it nothing more than a
fascinatingpastime whichoccasionally sends the judiciaryinto bouts of navel gaz-
ing in order to‘indulge [their] curiosity’, as US Supreme Court Justice Antonin
Scalia puts it?
5
Anydiscussion of comparativeconstitutional law needsto engage in morethan
textual analysis. RainerWahl, for instance, has argued that a comparison of con-
stitutional law needs to take place on four levels: i) text and interpretation; ii) the
principles and institutions of constitutional law; iii) the understanding of state
and constitution; iv) comparative law as comparative culture.
6
Gˇnter Franken-
berg tries to capture the connection between constitution and culture through a
‘layered narrative’that focuses on i) rights and principle s; ii) values and duties; iii)
organisational provisions; and iv) rules for constitutional amendment and
interpretation.
7
MOCI’s strongest selling point is its multi-jurisdictional,
cross-cultural, and inter-disciplinary character which transcends the textual
5 ‘AConversation Between U.S.Supreme Court Justices’ 3(4) International Journal of Constitutional Law,
519, 534.
6R.Wahl,Verfassungsstaat,Europa
ºisierung, Internationalisierung (Frankfurt: Suhrkamp,2003) 99.
7 G.Frankenberg,‘Comparing Constitutions: Ideas, Ideals and Idealogy^ Towarda Layered Narra-
tive’(2006) (4)3 International Journal of ConstitutionalLaw 439^459.
Neither Parochial NorCosmopolitan
304 r2008 The Author.Journal Compilation r20 08 TheModern Law Review Limited.
(2008) 71(2) 303^319
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