Comparative Constitutional Design and Legal Culture
- Studies in Comparative Law and Legal Culture series
Edited by Günter Frankenberg
Chapter 9: “Ordering” constitutional transfers: a view from India
The sphere now known as comparative constitutional studies (COCOS, as I prefer to name this) is of recent origin; of even more recent origin is the study of constitutional “origins” or “borrowals”. Understandably, these spheres remain heavily influenced by traditions of “doing” comparative law and jurisprudence, and more particularly by the imagery of “legal transplants” and discourses about juristic convergence and differences. Cutting across this, Professor Günter Frankenberg now proposes the notion of legal “transfers”. He maintains that no recourse to “grand narratives” is needed to understand the traffic of ideas and constitutional arrangements and models; instead all that is required is some “more modest claim of the ‘IKEA theory’ of constitutional (and legal) transfer.” A “central tenet” of this theory is the idea of “the global constitution” that “functions as a reservoir or, for that matter, a supermarket, where standardized constitutional items – grand designs as well as elementary particles of information – are stored and available, prêt-à-porter, for purchase and reassemblage by constitution makers around the world”. Frankenberg insists (no matter how one may read the rather easy metaphorical equivalence between a “reservoir” and a “supermarket”) that the “global constitution” is in itself constituted by legal transfers: yet, it is neither an analogue of “a national constitution writ large as an ‘emerging universal’ constitutional system” nor does it entail any advocacy of “the desirability of a novel type of trans-, inter-, or supranational constitution as the result of some adaptation of national constitutions to global requirements”.
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