constitutions at the ‘organic’ end of a spectrum at which laws are ‘most resistant
to transplantation’.
82
In fact, transplants are equally familiar in the field of public law and more so in
conditions of internationalisation. The very notion of a written constitution is,
originally, a transplant. The characteristics of public law that gave both Watson
and Kahn-Freund pause are relevant nevertheless. Constitutions that last tend to
evolve organically, so that their components are interdependent on each other.
Any constitution necessarily is affected by the political, legal, economic and social
circumstances of the state in which it functions. Many constitutions are deeply
rooted in the history of the state, symbolising its most significant national moments.
The greater the expectations that are placed on constitutions for the purposes of
state building, transformation and the reconciliation of deep social divisions, the
greater their dependence on context is likely to be.
While these features of public law do not preclude transplants, they suggest that
whatever challenges transplants present may be more pronounced. Some fail or
partly fail, however failure is identified. Many are likely to have consequences that
were not predicted. All can be expected to operate in a manner that is distinctive in
some degree. This is so even when an institution or principle is adopted from
elsewhere without modification; and a fortiori where it is adapted to meet local
needs or preferences. The differences in the operation of the institution of diffuse
judicial review, chronicled in several of the chapters in this volume, are a case in
point. In Japan, judicial review is typically restrained, although, as Sakaguchi notes,
its effects may often be achieved through statutory construction.^83 In India, the
Supreme Court is famously activist, with a caseload of more than 60 , 000 cases a
year.^84 In Singapore, courts display ‘reticence’, employing what Thio describes as
a ‘dialogical rather than confrontational attitude’.^85 These variations are attribut-
able to a range of factors: legal and social culture; practical circumstances; and
the interdependence of judicial review with other constitutional institutions
including, in Japan, the Cabinet Legislation Bureau.^86
There is a question that can be noted only in passing about whether the same
challenges apply to the incorporation of international human rights standards into
domestic law. The presumed universality of international human rights norms
reference to private law that ‘usually legal rules are not peculiarly devised for the particular
society in which they now operate and...that this is not a matter for great concern’.(^82) Kahn-Freund, ‘On uses and misuses of comparative law’, at 17.
(^83) Sakaguchi, ‘Major constitutional developments in Japan in the first decade of the twenty-
first century’,Chapter 3 of this volume.
(^84) Deva, ‘The Indian constitution in the twenty-first century: the continuing quest for
empowerment, good governance and sustainability’,Chapter 15 of this volume.
(^85) Thio Li-Ann, ‘“We are feeling our way forward, step by step”: the continuing Singapore
experiment in the construction of communitarian constitutionalism in the twenty-first
century’s first decade’,Chapter 12 of this volume.
(^86) Sakaguchi, ‘Major constitutional developments in Japan’,Chapter 3 of this volume.