The legal transplant has bloomed during the last decades due to many aspects, including technological developments, globalisation, and better means of communication between states. While its effects have been studied extensively in the private law area, little research has been done on its consequences upon the public law sphere (Perju, 2012).
This lack of research is due to the fact that while private law is a lot more specific and takes into account mostly the present needs of the citizens, the situation is more complicated in the public law area, where there are many other elements that should be considered, such as political influences and the impact of the national history and local culture.
This article will focus on the constitutional transplant as an essential part of the public law. Being related to the fundamental law of the state, the constitutional transplant started many controversies, regarding both its mere existence and its effects. I will argue that the constitutional transplant is, in fact, possible, but not always successful. I will try to prove that whether or not it is successful, it is beneficial for the country where it takes place, as it triggers a reaction that directs the legislation in the right way. I will also explain why a successful transplant does not always mean that the interpretation of the borrowed law remains the same.
For a better understanding of the arguments, I will define the legal transplant as ‘borrowing of legal institutions from foreign jurisdictions’ (Spector, 2008). As for the constitutional transplant, it refers to the same process, but regarding the fundamental law of each country.
To begin with, many authors question firstly its existence. For instance, Frederick Schauer mentioned that this phenomenon is not possible, due to social, economic and political factors which are specific for each country and which cannot be transferred (Spector, 2008). On the other hand, Carlos Rosenkrantz agrees with its existence, but believes that it is not desirable if we take into account cultural heterogeneity and the democratic ideal of self-governance (Perju, 2012).
However, there are experts who agree with the existence, as well as with the usefulness of the transplant. Alan Watson believes the transplant of ideas of legal rules is the main source of development in a country (Perju, 2012). Pierre Legrand believes the transplant is possible, but only the text can be transported, not its meaning, which is given by the people based on their culture, traditions and history (Perju, 2012). Otto Kahn Freud believes the laws regarding political power cannot be transmitted, but the other ones can (Perju, 2012).
In fact, the constitutional transplant has been proven successful over long periods of time. For instance, Argentina has implemented, between 1860 and 1930, a constitution which adopted the Preamble and some of the amendments of the US fundamental law (Spector, 2008). The idea of legal transplant evolved for hundreds of years, in a gradual manner, starting with the actual existence of written constitutions. Nowadays, the transplant usually happens between countries having a similar political regime, and belonging to the same legal system. There are transplants that happen as a result of a country becoming a member of a certain international organisation, such as the European Union, or as a natural effect of implementing a certain political systems, such as democracy.
For a better understanding of this phenomenon, I will further explain the actual mechanisms behind it and why I do not consider that it is detrimental to the country which chooses this method to develop its legislation.
Due to what is called the mirror theory of law, countries have the tendency to borrow rules from other states which have similar history and traditions. Consequently, after the actual borrowing, there are two possible outcomes: either the law is accepted- and therefore implemented-or it is rejected.
The difference between the constitutional transplant and general legal transplant is that, in the case of the fundamental law, in many countries, people have the right to vote through a referendum whether or not they agree with a constitution or with certain parts of it. The citizens have the right to decide whether or not that given law, or its interpretation, should become their fundamental law.
If the law is accepted and implemented, it does not mean its interpretation is going to be the same as in the state that initially used it. Two different types of interpretation can be identified: the one given by the legislators, the Constitutional Court and the doctrine, on one hand, and the one given by the positioning of the law in the constitution, on the other hand. Nevertheless, both interpretations depend on the priorities of that given country For instance, in the case of Japan, who transplanted constitutional rules from both US and UK, the first chapter of the constitution has always referred to the emperor, as a result of their tradition (Okudaira, 1990,).
However, if the law is rejected by the population, it means that either it is not necessary in the given country or that, even if the rule is necessary, that certain one is not considered adequate by the population. For instance, Poland tried implementing the American structure of the Government, but failed because it did not correlate well with the functioning of the other institutions, therefore, they chose the French structure instead (Perju, 2008).
What should be noted in both cases is that, no matter if the transplant is successful or not, it triggers a reaction from the receiver. That reaction can be of acceptance or rejection, and in any instance it almost never means the exact copying of the legal rules, but having a functional adapted model which will be followed. That is especially relevant for newly democratic countries, which may need guidance in their development. Following a certain constitutional model also means that the countries have the possibility to find inspiration in the case law of those national courts when they need to interpret certain rules.
To conclude, the constitutional transplant is possible, like it has been proven in many cases. It can be beneficial for the country which uses it, if that country adapts the legal rules taking into consideration their national background. The constitutional transplant is different from the one which takes place in the area of private law, as the law that is borrowed needs to correlate well both with the rest of the legislation and with the history, tradition and culture of the state, therefore more complex aspects need to be taken into account.