Diffusing Bad Ideas: What the Migration of the Separation of Powers Means for Comparative Constitutionalism and Constitutional Transplants
University College Dublin (UCD) - School of Law
July 1, 2010
Hart Legal Workshop, 2010
This piece considers the implications of diffusion studies for comparative law.
It argues that the diffusion research suggests that ineffective or detrimental innovations may be as likely to diffuse as successful or beneficial measures. Indeed, the research indicates that the ‘best’ constitutional innovations will not necessarily be the same as those that migrate or transplant successfully.
Basic analytical or cognitive limitations mean that we may be unable, in the first instance, to distinguish between the objectively or rationally advantageous theory and the one which we are more inclined, for various reasons, to perceive as advantageous. Even if experts are able to engage in such an objective assessment of competing constitutional theories, the research still suggests that the ideas that are more likely to diffuse are those that are easier to understand, and those that appear to approximate most closely to existing concepts.
This suggests that it is necessary to approach comparative research with greater scepticism or rigour and focus on the development of methodologies that limit the weakenesses identified in the diffusion research.
Number of Pages in PDF File: 20
Keywords: diffusion, comparative law, comparative constitutional law, separation of powersAccepted Paper Series
Date posted: January 20, 2013
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