Comparative Constitutional Design and Legal Culture
Studies in Comparative Law and Legal Culture series
Edited by Günter Frankenberg
Chapter 2: Clotted history and chemical reactions – on the possibility of constitutional transfer
Can legal principles interact with reality? The German law professor Josef Kohler stated in his 1887 essay on “The Creative Force of Jurisprudence” that: As it is the matter of the chemical researcher to find new substances by combining the right compounds […], so has the […] legal scholar to dip a [legal] principle in the plenitude of life, and to approximate it to those conditions, in which it brings about the most interesting combinations. The “experimental” nature of law has been subject to many legal considerations. As Oscar von Bülow pointed out in 1885: law is a result of experience, it had to be experimentalized: It is a case-by-case result of bitter legal necessity, which urged to resolve the antagonism of human selfishness and passion,that endangered property and life. One way in which a national legal system might “learn” would be through the experiences of other legal systems which have dealt with similar (real as well as normative) questions. Whether such “learning” from a strange example is possible has been the subject of major scientific debate. While the “grand” or “classic” narrative of the development of legal systems is characterized by the term “reception,” newer terminology has been developed, with each signifying a specific concept. One can identify – for instance – the organic (and “modern”) term “transplant,” which stands in contrast to a more technical designation (“transfer”) or the post-modern concept of “IKEA theory.” Other expressions used for the relationship between a “giving” and a “receiving” system are “borrowing,” “adaptation,” “mutation,” “influence” or “migration.”
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