Insights from transplant theory
A second force that militates against convergence through internationalisation in
practice, if not in form, is the influence of context on the operation of consti-
tutional arrangements.
At one level the point is obvious. The operation of any institution, legal principle
or rule is affected by the context in which it operates. Context includes any facet of
a state that may impinge on the operation of the constitutional system, broadly
conceived. Thus, to take an example, the operation in practice of a parliamentary
system of government is highly dependent on disparate factors that include history
and tradition, population size, geography, political party configuration, the
electoral system and the rest of the constitutional framework. The institution of
Parliament in the United Kingdom, in consequence, not only operates somewhat
differently from its counterparts in, say, Australia or India, but also has more
gravitas as a component of the constitutional system, despite the similarity of the
template on which all three are based.
Additional insights into the relevance of this phenomenon for present purposes
can be derived from the theory and practice of legal transplants.
77
I use the term
‘transplant’ here loosely,
78
to cover movement of any constitutional institution or
doctrine between states, whether gradual or sudden, voluntary or involuntary,
wholesale or specific, and irrespective of whether the prime movers are
constitution-makers, peace-builders, occupiers, legislators, governments, judges,
scholars or influential actors of any other kind.^79
The early literature on legal transplants featured a famous divide between Alan
Watson, who argued that they were both common and ‘socially easy’, and Otto
Kahn-Freund, who warned of the limits of transferability.^80 The debate took place
almost entirely by reference to private law, however. Watson appears specifically
to have excepted constitutions from it, quoting an observation by Milsom that
‘[s]ocieties largely invent their constitutions’.^81 Kahn-Freund also placed
(^77) For a recent critique of the use of the ‘transplant’ metaphor, both generally and with
particular reference to ‘globalization’, see Sheldon Bernard Lyke, ‘Brownabroad: an
empirical analysis of foreign judicial citation and the metaphor of cosmopolitan conversa-
tion’ ( 2012 ) 45 Vanderbilt Journal of Transnational Law 83 at 124 – 7.
(^78) Cf William Twining, ‘Social science and the diffusion of law’ ( 2005 ) 32 Journal of Law and
Society 203 at 207.
(^79) A range of other terms is also in use to describe one or more of these types, including
transfer, reception, adaptation, circulation, diffusion, migration, importation, engagement,
conversation and ‘irritant’: Gunther Teubner, ‘Legal irritants: good faith in British law or
how unifying law ends up in new divergences’ ( 1998 ) 61 Modern Law Review 11.
(^80) Alan Watson,Legal Transplants: An Approach to Comparative Law, 2 nd edn (first pub-
lished 1974 ) (Athens: University of Georgia Press, 1993 ); Otto Kahn-Freund, ‘On uses and
misuses of comparative law’ ( 1974 ) 37 Modern Law Review 1.
(^81) S.F.C. Milsom,Historical Foundations of the Common Law(London: Butterworths, 1969 ),
p. ix, quoted in Watson,Legal Transplants,p. 8 , see also 98. Watson argued, at p. 96 , with