Constitutional transfer: The IKEA theory revisited

Abstract

Text books and articles on comparative constitutional law, regardless of their focus or methodological orientation, suggest that constitutions all over the world, at least most of them, come in the form of a single written document that deals with rights and principles, values and duties, organizational provisions, and one or the other type of judicial review. One might infer that most constitutional items that are part and parcel of the theoretical study and practices of constitution making have been standardized; they appear to circulate like marketable goods among the participants of the transnational disciplinary discourse and framers-the constitutional elites, experts, and consultants. One may assume, therefore, that constitutions, though always entangled in a specific local context and informed by its particular political and socioeconomic power constellations and historical traditions, have undergone a process of "globalization." In this article I want to discuss how such globalization of mindsets and texts comes about. Therefore, I reintroduce the IKEA theory so as to reconstruct how constitutional ideas and norms, institutions and arguments, are transferred from local contexts to what I call the "global constitution" and from there to a host environment. The concept of constitutional transfer requires a brief discussion of the (im)possibility of legal "transplants" and of the risks and side-effects of such transfer.