Comparative Constitutional Design and Legal Culture
Edited by Günter Frankenberg
Chapter 3: “One size can fit all” – some heretical thoughts on the mass production of legal transplants
The World Bank likes global solutions. In the first of its annual “Doing Business” reports, it suggested that, in law reform, “one size can fit all – in the manner of business regulation.” What the Bank means is that best practices can be identified that would improve the legal system of every country, regardless of its legal and general culture, economic system, level of development, etc. This idea – that what matters is the quality of a legal institution law determined in the abstract, not its fit – is widespread in business law reform, but not confined to this area. Recent studies on transfer of constitutional norms show similar developments. David Law and Mila Versteeg mention “generic rights” that exist in virtually all constitutional texts. This idea of “one size fits all” is a provocation for comparative lawyers. The presumption that the success of legal transplants is independent of the conditions of the recipient countries runs against longstanding convictions in comparative law. Some of these convictions are empirical and theoretical: the inadequacy of viewing laws as mere words (law in action versus law in the books); the interplay between different legal rules within one legal system, the groundedness of all law in local legal culture. Others are ideological: an opposition against legal hegemonialism through Western laws and concepts, against a Western preference for formal rules over substantive justice. In fact, amongst comparative lawyers, “one size fits all” has long been used as an ironic depiction of unsophisticated attempts at law reform that is to be rejected.
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