Comparative Constitutional Design and Legal Culture
- Studies in Comparative Law and Legal Culture series
Edited by Günter Frankenberg
Constitutions as commodities: notes on a theory of transfer
Constitutional information comes packaged and refers to institutions, norms, principles, doctrines, and ideologies. And for more than two centuries, not counting the crucial influence of previous basic laws or leges fundamentales, it has crossed national boundaries, social-cultural contexts, and the limits of epistemic communities. Such information has reappeared for application within different constitutional regimes and different political constellations, resulting from the dynamics of social struggles and accommodating specific economic conditions. And the overall result, given the innumerable variations at play, is striking. Constitutions come for the most part in the form of a written document and contain the legal ground rules for life in society: rights and principles, values and duties, provisions for the organization of government and, with regard to the operative quality of the document, ascertaining its authority, openness to interpretive change or legislative amendment, shifting between stability and flexibility. From this general picture I have inferred that most constitutional items – shorthand for ideas and institutions, ideals and ideologies, norms and arguments, doctrines and theories – which are part and parcel of reasoned elaboration in doctrine and theory, of comparative analysis and practical constitution-making have been standardized and circulate like marketable goods among the participants of the local, regional, and transnational disciplinary discourse and, in particular, among constitutional elites and their consultants as well as social movements with a constitutional agenda.What reads like one of the many narratives of globalization focuses on the fact that the modern constitutional idiom, though always geared toward and entangled in a specific local and historical context, has proliferated worldwide, with liberal constitutionalism holding a hegemonic position.
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