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ARTICLE

Paradoxes of constitutional borrowing

Wiktor Osiatynski*

1. Introduction
This essay presents some observations about the transplanting of
constitutionalism. It looks at the general idea of constitutionalism and specific
institutions and provisions included in constitutions. What happens when
constitutions travel across national borders and between cultures? My goal is
not to provide answers, but to point to a number of issues that may deserve
discussion and more detailed research. While the ideas of this essay spring
primarily from the Polish constitution-making experience, I attempt to use
Polish and East European examples to discuss more general and universal
questions related to constitutional borrowing.
This essay reflects a contradiction perhaps inherent to all transplanting of
constitutionalism. Borrowing is inevitable while, at the same time, extremely
difficult and at times impossible.
Borrowing is inevitable because there are a limited number of general
constitutional ideas and mechanisms, and they have been in the air for some
time. At the end of the twentieth century, most constitutional systems are or
were derivative in part, with the possible exceptions of the ancestor systems of
the United Kingdom, the United States and France, writes Cheryl Saunders.1
Borrowing takes place when drafters of new constitutions encounter a particular problem and look to other constitutions for solutions. Reading across
any large set of constitutional texts, it is striking how similar their language is;
reading the history of any nations constitution making, it is striking how
much self-conscious borrowing goes on, suggests Robert N. Goodin.2 No one
begins writing a constitution from scratch. In addition, there exist strong
* Central European University, Budapest, Hungary, and Warsaw, Poland. I am grateful to Barry Friedman
for help in editing this essay.
1

Cheryl Saunders, A Constitutional Culture in Transition, in CONSTITUTIONAL CULTURES 37 (Miroslaw

Wyrzykowski ed., ISP 2001). Saunders also suggests that in the broadest sense, borrowing of
principles and institutions of a constitutional kind pre-dates the age of written constitutions. Id.

Robert E. Goodin, Designing Constitutions: The Political Constitution of a Mixed Commonwealth,

in CONSTITUTIONALISM IN TRANSFORMATION: EUROPEAN AND THEORETICAL PERSPECTIVES 223 (Richard
Bellamy & Dario Castiglione eds., Blackwell 1996). Goodin criticizes this practice. Nothing I have
said here does militate against getting ideas from elsewhere, of course. But the theory of second
best does militate against any wholesale borrowing of documents from elsewhere, with only
marginal amendments to reflect local circumstance. Id. at 230.

Oxford University Press and New York University School of Law 2003,
I.CON, Volume 1, Number 2, 2003, pp. 244268

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interests that promote borrowing, e.g., the need of the leaders of a particular
country to look good to others or to demonstrate friendship toward another
country. Constitutional experts also have a vested interest in borrowing or,
at least, in the international exchange of ideas, because this may provide them
with influence and a sense of importance.
On the other hand, similarity in constitutional solutions by itself does not
prove that borrowing has occurred. Even in sections on rights, where international standards are usually adopted, there are important departures by which
the drafters manifest the unique identities of their countries. Despite the fact
that the number of powers to be separated, and the variations in the relationships between them, is limited, careful analysis of constitutions demonstrates
many minute differences behind seemingly similar solutions.
In addition, there are barriers to borrowing. A sense of national pride is one
of them. Rett Ludwikowski offers an interesting summary of attitudes prevailing
during constitution making in East Central Europe: The drafters of the new
constitutions did not have any doubts that they [would] have to borrow from
the West but they wanted to borrow in their own way.3 Resistance to foreign,
or even local, experts can also play a role. The need for the legitimacy of a new
document can limit borrowing. The desire of existing institutions to keepor
to increasepower often prevents or influences borrowing. There are also
important cultural factors that create resistance to, distortion of, or change in
constitutional ideas and institutions. In what follows, examples of such factors
will be analyzed in the hope that some light may be shed on the complexity of
constitutional borrowing.

2. The original misunderstanding

Let us begin with the flow of ideas. They originate in one place and time, travel
to other places along unpredictable routes; often they are discarded, but sometimes embraced and/or applied. Such was the case with the original idea of
constitutionalism. It developed in Western Europe, particularly in England, as
a reaction against absolutism. The idea traveled, with religious dissenters and
political immigrants, to British colonies in North America, where it was
applied in practice. With the adoption of the United States Constitution in
1787, the American government was entrusted with grants of power limited
by checks and balances among the branches of government, and between the
federal and the state governments. Governmental power also was limited by
the rights and freedoms retained by the citizens (and by the powers retained by
the states), who could use formal institutions for the redress of grievances
against the state. This idea of constitutionalism then returned to Europe.
England embraced the idea of limited government and rights, but when
3
Rett R. Ludwikowski, Constitutional Culture of the New East-Central European Democracies,
in CONSTITUTIONAL CULTURES, supra note 1, at 61.

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the supremacy of Parliament was established in the late eighteenth century,

it rejected the separation of powers and the idea of having a written
constitution.4
In continental Europe, the American idea of constitutionalism was
misunderstood and distorted. The essence of American constitutionalism was
the limitation on all powers including the sovereign power of the people as
represented in the legislative body. The first words of the U.S. Bill of Rights
Congress shall make no law . . . 5 emphasize that the purpose of the Bill was
to limit not to strengthen the legislative body.
The French Declaration of Rights of 1789, by contrast, took steps to
strengthen the role of the legislature.6 Thus, French constitutional history
began with the idea of peoples sovereignty located in the popular will and
manifested in the legislature. Andrzej Rapaczynski has demonstrated that this
distorted the idea of American constitutionalism.7 The Europeans from the
beginning misunderstood American constitutionalism as peoples sovereignty
rather than a limitation on the very concept of sovereignty. What European
contemporaries perhaps admired most in the U.S. Constitution was the idea of
popular sovereignty, which they saw as being put into practice in the New
World. This very concept was also most responsible for the failure of many
European observers to grasp the true meaning of American constitutionalism.
For underlying their enthusiasm was a concept of sovereignty that the U.S.
Constitution in fact, though not always consciously, undermined. . . . [T]he
power that some philosophes wanted to give the people was the same power
they thought the kings had usurped: the power that the political and legal
philosophers of the time called sovereign. 8 In the U.S., however, the idea of
unlimited sovereignty was clearly rejected by the American Founding Fathers
in the name of a government of limited powers, subject to constitutional
restraints.9
Although the American concept of popular sovereignty was misunderstood
in eighteenth century Europe, many political philosophers of that time
nonetheless were eager to borrow such American ideas as natural equality or
4

The adherence of Great Britain to the principle of constitutionalism is unquestioned despite the
lack of a written constitution. It can even be claimed that by the late eighteenth century, when
other states began to constitutionalize their systems of government, in Great Britain constitutionalism had already been so strongly entrenched that a written constitution was not needed.

U.S. CONST. amend I.

Article 6 of the Dclaration des droits de lHomme et du citoyen [Declaration of the Rights of
Man and of the Citizen] states: Law [understood as statute law] is the expression of the general
will. FRANCE CONST., art. 6.

See Andrzej Rapaczynski, Popular Sovereignty and the Concept of Representation: The Relevance of
American Constitutionalism in Eastern Europe, 26(4) INTL J. SOC. 7 (199697).

Id. at 9.

Id. at 11.

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the concept of property rights. The idea of equality, however, was distorted. For
example, in eighteenth-century Germany, equality of economic opportunity
and equality before the law were accepted, while political equality was almost
incomprehensible.10 Two other ideas of the American Revolution, i.e., the
right of revolution and the separation of powers, were rejected even by
German admirers of the American Revolution. Similarly, [t]he rights of man
were hardly understood to be a concrete political requisite of modern constitutionalism.11 In the same period, the advocates of change in Europe rejected
American principles of federalism and decentralization.12
In the nineteenth century, the American idea of constitutional rights was
rejected outright in Europe, and by the end of the century constitutionalism
received a bad name in Europe when it was identified, via the U.S. Supreme
Court adjudication during the Lochner era, with reactionary opposition to
social progress.13 The French, in particular, perceived American courts as
using constitutional rights to thwart the social policies of the state. Almost
every solution proposed in Europe to alleviate the social problems of industrialization focused on the regulatory, if not redistributive, role of the state. In the
U.S., Lochner-era adjudication seemed to close that avenue of social change.14
The American idea of constitutionalism returned to Europe after World
War II. The atrocities committed during this period persuaded Europeans that
the sovereignty of even the most representative parliamentor of the people
themselvesshould not be unlimited. The institutionalization of this idea of
constitutionalism took place via the establishment of constitutional review,
albeit in different guises than in the American system. The German
Constitutional Court took a European shape, a structure and character that
reflected the system of civil law. In France, the transition to constitutionalism
took its own peculiar path. First, President Charles de Gaulle rejected the
concept of parliamentary supremacy and to a significant degree subordinated
the parliament to the cabinet and to the referendum; thus parliamentary
10
[The idea of political equality, i.e., that] [a]ny citizen with understanding, knowledge and the
capacity for action can claim a post as a member of government, or a deputy in Congress, or its
president. . . . This assumption hinted at the development altogether unthinkable under European
conditions. It was so far beyond the range of experience and imagination of the average member
of German bourgeoisie that it found hardly any response. HORST DIPPEL, GERMANY AND THE
AMERICAN REVOLUTION 17701800: A SOCIOHISTORICAL INVESTIGATION OF LATE EIGHTEENTH-CENTURY
POLITICAL THINKING 160 (Bernhard A. Uhlendorf trans., Univ. of North Carolina Press 1977).
11

Id. at 165.

12

In Europe the democratic movement was centralized and unitary. R. R. Palmer, The Impact of
the American Revolution Abroad, in THE IMPACT OF THE AMERICAN REVOLUTION ABROAD. LIBRARY OF
CONGRESS SYMPOSIA ON THE AMERICAN REVOLUTION. FOURTH SYMPOSIUM 14 (Library of Congress 1976).
13
14

Lochner v. New York, 198 U.S. 45 (1905).

See DOUARD LAMBERT, LE GOUVERNEMENT DES JUGES ET LA LUTTE CONTRE LA LEGISLATION SOCIALE AUX TATSUNIS [JUDICIAL RULE AND THE STRUGGLE AGAINST SOCIAL LEGISLATION IN THE UNITED STATES] (Giard 1921).

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sovereignty was subordinated to a direct sovereignty of the people. Then, in

the 1970s, the Conseil Constitutionnel claimed for itself the right of constitutional review.15 Today, with the existence of European courts, Western Europe
now lives under a constitutional regime resembling the American system. It
was, however, Europes own development that eventually led to the acceptance
of an idea that had been present for two hundred years.

3. Borrowings, rejections, and distortions

The issue of borrowing particular institutions and provisions may seem
simpler than the borrowing of the general idea of constitutionalism. We see
the American model of diffuse constitutional review in some European
countries. We see the French semipresidential system in Portugal. We see
a majority of international human rights provisions in constitutions of many
nations. But is this borrowing? What does it mean to borrow? Is similarity
of constitutional institutions, or even provisions, a result of borrowing? Does
borrowing need to be conscious? Does it need to be voluntary?
During the period of decolonization, the adoption of a constitution was
perceived as proof of the ability of self-government, and thus a precondition of
independence. Many postcolonial countries consciously adopted models similar to those of their former colonial power, particularly when independence
came as a result of negotiations and peaceful agreement. This helps explain
why the English model of government has been more influential than the
American model. Although the United States radiated the idea of constitutionalism, England has spread a specific constitutional designthe Westminster
model. After all, Great Britain had more colonies than other countries
and most of them gained independence without anticolonial wars.
Anticolonial movements and postcolonial elites had learned to play within that
system and inherited it when Great Britain withdrew.16 But is the continuation of a model of the former colonial power synonymous with borrowing?
After World War I, the new states that were granted independence were
required by the Versailles Treaty to adopt in their constitutions specific provisions for the protection of national minorities. Even the formulas for such
treaties were imposed by the great powers. Was this borrowing? After World
15

In the original design of General de Gaulle, the Conseil Constitutionnel was created to ensure
that Parliament did not encroach upon the legislative powers assigned to the cabinet. See ALEC
STONE, THE BIRTH OF JUDICIAL POLITICS IN FRANCE: THE CONSTITUTIONAL COUNCIL IN COMPARATIVE
PERSPECTIVE 6078 (Oxford Univ. Press 1992); JOHN BELL, FRENCH CONSTITUTIONAL LAW 14751
(Clarendon Press 1992).
16

Another possible explanation for the spread of the Westminister model could be the greater
attractiveness for the new postcolonial elites of parliamentary supremacy. Once the elites gained
control over the representative mechanisms, i.e., political parties, they could exercise an absolute
power through the Parliament.

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War II, the United States heavily influenced the Constitution of Japan, and the
U.S.along with England and Franceimposed a number of conditions
(including the very principle of constitutionalism, limitations on the legislature, the introduction of constitutional review, and federalism) on occupied
Germany. Was this borrowing or simply a transplant of ideas and institutions?
Poland and Romania in 1918, Germany and Japan after 1945, and many postcolonial states in the 1960s had little choice but to accept the conditions as the
price of their independence or for losing the war.
In 1989, the former communist states, which were at the beginning of transition to constitutional democracy, knew perfectly well the specific constitutional
expectations of the Council of Europe and of the European Community. They
could disregard these expectations, and some did, facing such consequences as
not being admitted to the Council of Europe, being expelled from it, or forgoing
the prospect of joining the European Union. But if they wanted to join the
European family in the foreseeable future, they had to adapt their constitutions
to these requirements. There was more room for choice than in the case of
Versailles, but nevertheless the countries were not completely free as they looked
about for needed institutions or provisions and made a choice to borrow.17
The acceptance of international standards usually took the form of elevating international human rights treaties to a high position in internal legal systems. Usually, such treaties would be placed under the constitution and above
statutes.18 There were two problems with this solution. One concerned the
way in which such international norms would be enforced. Should ratified and
duly promulgated treaties on human rights be guiding principles for legislators? Could a constitutional court strike down an internal statute for lack of
conformity with international human rights law? Could an individual turn
directly to the judiciary on the basis of an international human rights treaty
in the absence of a national statute or contrary to the provisions of an existing
statute? It seems that it would be possible in the Czech Republic but not in
Slovakia.19 Does this mean that the Czechs borrowed and the Slovaks did not?
The second problem is related to the question of which international
documents should be so elevated. Could the Universal Declaration of Human
Rights become binding law, above statutes? The lack of enforceability of the
17

A question for future scholars is whether the difference between imposed and voluntary
borrowing has any impact on the implementation of borrowed or imposed provisions after the
adoption of a constitution.
18
For example, article 153 of the Constitution of Slovenia states that statutes must conform with
generally accepted principles of international law and with international agreements
currently in force. SLOVENIA CONST., art. 153.
19

Article 11 of the Slovak Constitution uses a rather vague expression that such treaties take
precedence over Slovakias own statutes provided that they secure a greater extent of constitutional rights and liberties, while article 10 of the Constitution of Czech Republic states that such
treaties shall be directly binding. This formula implies that an international human rights treaty
can be enforced in courts without the need for a statute. SLOVAKIA CONST., art. 11; stava CR, art. 10.

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Declaration allowed UN drafters to include a number of programmatic and

aspirational statements in its final text. If inserted in a constitution such
declarations could undermine the enforceability of the entire document. One
of the last-minute amendments to the draft constitution of Poland proposed
that the rights mentioned in the Universal Declaration and other international
human rights documents ratified by Poland should be elevated to constitutional status. Upon the advice of experts, President Aleksander Kwasniewski
vetoed this proposal, claiming it would give constitutional range to promises
that cannot be met, for example, that the state should provide every individual
with the means for full development of his or her potential, or the highest
attainable standard of medical care. Thus, there was a conflict between two
borrowed institutions: international human rights and the principle of
enforceability, which undoubtedly was borrowed from Western constitutional culture by the drafters of the postcommunist constitutions.20
Equally obvious, and much easier to assess, were the cases of conscious rejections of foreign constitutional ideas and institutions. Rejection takes place when
the drafters consider an idea or provisions and decide not to borrow. For example,
in 1919, Professor Jozef Buzek submitted to the Constitutional Assembly in
Poland a draft that suggested establishing a federal system, judicial review, and
popular election of the president, patterned on the U.S. example. The Assembly
discussed it, considered it inappropriate for Poland, and rejected it.21
Similarly, after 1989 some East European countries held a short-lived
discussion about whether it was advisable to pattern the new constitutions on
the American model. This idea was rejected almost out of hand because of the
drastic difference in U.S. and postcommunist traditions and social conditions.
[A] consensus of sorts has developed . . . that the Eastern European
countries should draw on Western European models, because of both
common tradition and the hoped-for future integration into the
European Union. . . . Even the most successful export of the U.S.
Constitutionthe institution of judicial reviewwas adopted in
Eastern Europe in a form that derived only indirectly from the American
prototype; a much more direct influence was the civil-law version of
constitutional review developed in Western Europe.22
20

An interesting question to examine is whether any relationship exists between the elevation of
the Universal Declaration of Human Rights to constitutional status and the growthor lack
thereofof constitutional culture in a country.
21
The Constitution of 1921 introduced the French parliamentary model to Poland, thus establishing a different clear case of borrowing.
22

Rapaczynski, supra note 7, at 8. See also HERMAN SCHWARTZ, THE STRUGGLE FOR CONSTITUTIONAL
JUSTICE IN POST-COMMUNIST EUROPE (Univ. of Chicago Press 2000). Cutler and Schwartz discuss specific provisions in which the Czechoslovak Constitutional Court was patterned on the European
rather than the American model. Lloyd Cutler & Herman Schwartz, Constitutional Reform in
Czechoslovakia: E Duobus Unum? 58 U. CHI. L. REV. 511, 53844 (1991).

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Similarly in 1992, during the debates on the making of the Little Constitution
in Poland, the U.S. Constitution was cited as an example of what should not be
borrowed, primarily because of the differences in party systems and political
context.23
Apart from rejections, there are also cases of conscious distortions of
allegedly borrowed ideas. After the coup dtat in Poland, in May 1926,
Marshall Jozef Pilsudski successfully exploited the celebrations of the 150th
anniversary of the United States Declaration of Independence to increase
social support for presidential supremacy; a constitutional amendment transferred powers from the Sejm to the president. With time, Pilsudskis camp
looked to the United States to justify an ever stronger benevolent state.
Pilsudski used the U.S. model when he addressed a team designing a new
Polish Constitution. I am not saying that we should imitate the United States
down to the last detail . . . but we must seek in that area of ideas something that
can be applied to Poland.24 The result of this creative adoption of American
ideas was pretty far from the U.S. example: the Constitution of 1935 rejected
the ideas of separation of powers and subordinated the government, the parliament, and the armed forces to the president, who was responsible only to
God and History (article 2) and was not responsible for his presidential
actions (article 15).25
What we see, so far, are examples of borrowing, rejecting, or distorting
foreign constitutional ideas and institutions. I am not certain if these examples
provide a pattern or allow one to define borrowing. Any description wide
enough to include various examples would probably be meaningless. To understand borrowing better we will look in a more detailed way to the borrowing of
a constitutional solution in an area that is not clearly defined by international
standards and leaves some degree of space for creativity.

4. Borrowing and creativity

A good example of such an area is the constitutional status of social and
economic rights. International documents do not require the constitutionalization of such rights. The 1966 International Covenant on Economic, Social,
and Cultural Rights identifies them primarily as standards of achievement
23

This opinion cut across political spectrum. Right-wing Jaroslaw Kaczynski said that
there exist[s] no social basis, in Poland, to create a presidential system in the American style.
His postcommunist adversary, Jerzy Jaskiernia termed American model as useless for Poland. See
RYSZARD CHRUSCIAK & WIKTOR OSIATYNSKI, TWORZENIE KONSTYTUCJI W POLSCE W LATACH 19891997
156, 187 [CONSTITUTION-MAKING IN POLAND, 19891997] (ISP 2001).

24

JOZEF PILSUDSKI, PISMA WYBRANE [SELECTED WRITINGS] 417 (M. I. Kohn 1943).

25

See Wiktor Osiatynski, Constitutionalism and Rights in the History of Poland, in CONSTITUTIONALISM
RIGHTS: THE INFLUENCE OF THE UNITED STATES CONSTITUTION ABROAD 29293 (Louis Henkin &
Albert Rosenthal eds., Columbia Univ. Press 1990).

AND

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toward which the party states should strive, and it suggests that each state
make them a part of its legal order according to its economic possibilities.26
The European Social Charter (1961) treats social rights as a declaration of
aims that states should pursue by all appropriate means.27 Its signatories
should consider themselves bound by ten freely selected articles of the fortyfive numbered paragraphs of the Charter.28 The European Social Charter does
not require that contracting states incorporate such selected rights into their
constitutions.
There are strong arguments for and against constitutionalization of such
rights.29 These rights are absent in the U.S. Constitution. Constitutions in
Europe, however, as well as in Latin America throughout the nineteenth
century and after 1918, were full of social promises. This did not create a problem so long as these constitutions were considered programmatic and required
statutes for their enforceability. After World War II, with the transition to
constitutionalism in Western Europe, new constitutions reflected the
American approach. The German Basic Law (1949) replaced a chapter on
social rights, which was present in the Weimar Constitution, with a brief
definition of the German state as a democratic and social federal state.30 This
can be considered borrowing by adaptation. The Germans borrowed an
American approach and adapted it to their own unique needs. This model was
followed later by Sweden, in whose Constitution the only mention of the
welfare state was in the legally nonbinding preamble to the Instrument of
Government. The inclusion of a social chapter in the first draft of the 1946
French Constitution was one of the reasons General de Gaulle asked the
people to reject the document by referendum. After the voters rejected the
Constitution, a later version, which was approved, moved social rights from a
special chapter to a nonbinding preamble, alluded to in the 1958 Constitution
26

Article 2(1) of the Covenant states: Each State Party to the present Covenant undertakes to
take steps, individually and through international assistance and cooperation, especially
economic and technical, to the maximum of its available resources, with a view of achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate
means, including particularly the adoption of legislative measures. International Covenant on
Economic, Social and Cultural Rights, Dec. 16, 1966, art. 2(1) G.A. Res. 2200, U.N. GAOR, 21st
Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force Jan. 3, 1976).
27
European Social Charter, Oct. 18, 1961, art. 20(1)(a), 529 U.N.T.S. 89, (entered into force
Feb. 26, 1965).
28

Id., art. 20(1)(c). According to article 20(1)(b) among these articles there should be five out of
seven enumerated articles of the Charter. Id. art. 20(1)(b).

29

For discussion of these arguments, see Wiktor Osiatynski, Social and Economic Rights in a New
Constitution for Poland, in WESTERN RIGHTS? POST-COMMUNIST APPLICATION 233 (Andrs Saj ed.,
Kluwer 1996). See also MAURICE CRANSTON, WHAT ARE HUMAN RIGHTS? 6571 (Basic Books 1973);
Louis Henkin, Economic-social Rights as Rights: A United States Perspective, 2 HUM. RTS. L.J.
223 (1981).
30

Compare GG art. 20(1) with WEIMAR CONST. ch. 2, arts. 11934.

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of the Fifth Republic. In Italy, by contrast, the 1947 Constitution was generous
in promising social rights; this went hand in hand with the programmatic
character and dubious direct enforceability of the Italian Constitution.31
By the 1970s, when constitutionalism had already been treated seriously in
Western Europe, Portugal and Spain were making transitions from right-wing
dictatorships to constitutional democracy. Social and economic rights were an
important part of the program of the left-to-center coalitions that succeeded the
regimes of Dr. Salazar and General Franco. However, the need to adopt enforceable constitutions cut against constitutionalizing mere promises. In short, the
drafters in Spain and Portugal needed to put social rights in their constitutions
and, at the same time, not to give them full constitutional status. Except for
the Constitution of India, which was overloaded with programmatic directives,
there existed no model to borrow from; therefore, the drafters achieved their goal
by dividing the subject matter of traditional welfare rights into two categories.
A limited number of rights related to basic security were inserted into the
chapters on rights and freedoms that are directly enforceable by courts.32
In addition, both constitutions contain separate sections on the tasks of the state
in the social, economic, and cultural spheres.33 These chapters address values
that traditionally were treated as rights, but now they were simply goals for public policy and gave no grounds for claims in courts of law. According to article 53
of the Spanish Constitution, guiding principles should provide direction to
the legislation, court practice, and the activities of public authorities. They
include the duty of the state to organize and sustain the system of social welfare,
the rights to health care and to decent housing, as well as the right to access to
culture.34 Portuguese and Spanish drafters did not follow any model; they
created a completely new constitutional solution to an old problem.
31

Similarly, Soviet-type constitutions in East Central Europe contained full catalogues of social
and economic rights otherwise nonenforceable without special statutes.
32
Article 17 of the Constitution of the Republic of Portugal is titled: System of Rights, Freedoms,
and Safeguards, while Chapter II of the Constitution of Spain covers Rights and Freedoms.
PORTUGAL CONST. art. 17; C.E. ch. 2.
33

Section III of the Portuguese Constitution covers Economic, Social, and Cultural Rights and
Duties, while Chapter III of the Spanish Constitution covers Guiding principles of Economic and
Social Policy. PORTUGAL CONST. 3; C.E. ch. 3.
34
There exist important differences between the content of respective chapters in both constitutions. In the Constitution of the Republic of Portugal, which has Western socialist overtones,
direct constitutional protection was granted to many rights of employees, including the security
of employment, the rights to create workers councils and labor unions, the rights to collective bargaining, and the right to strike. Among the economic, social, and cultural rights that were not
given direct constitutional protection are the right to work, the right to safe working conditions,
and the right to private property. In Spain, by contrast, such traditional social and economic rights
as the right to work, the right to free choice of occupation, and to a decent compensation
are includedalong with the right to private property and freedom of enterpriseamong
fundamental public rights and freedoms and enjoy direct enforceability.

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The situation in postcommunist countries after 1989 was similar. Even

though social rights were enforceable by statutes rather than constitutions,
they were part of a cherished tradition and their absence would undermine the
legitimacy of the new documents. On the other hand, there were compelling
reasons to avoid vast social promises in the constitutions of the bankrupt
countries making the transition to a market economy.35
The first drafters to face this problem were the authors of the Czechoslovak
Charter of Rights. They came up with the original idea of putting all social
rights into the Constitution, but article 41 of the Charter stated that certain
enumerated social and economic rights (usually those whose implementation
involved public expenditures) can be claimed only within the limits of the law
as set out in these provisions. The scope and limits of social and economic
rights were thus left for the legislature to decide.
Polish drafters initially followed the Spanish example but in the final version
of the 1997 Constitution adopted the Czechoslovak model.36 The reason for
this change was related to a specific political situation, rather than to abstract
constitutional considerations. In part, drafters feared the hyperactivity of the
then-ombudsman for human rights, who confused constitutional rights with
his original field of scholarship, labor law. Even though the Spanish model did
not grant citizens enforceable rights, the model did not prevent the ombudsman
from challenging statutes that did not conform to the states aspirations before
the Constitutional Court. Thus decisions about the distribution of resources
were shifted from parliament to the ombudsman to the Constitutional Court.
The Czechoslovak model seemed to rule out this option. Another reason for the
change to the Czechoslovak model was tactical: opponents of the Constitution
would find the model less objectionable than the Spanish model.
Successful borrowing on the constitutional level can also involve new
institutions, such as the ombudsman, borrowed by many countries from
Scandinavia for its great potential to protect the rights of the powerless. At the
same time, the paternalistic character of the institution permitted acceptance
even by authoritarian governments, as in many African countries and in
Poland under the communist government. Another institution that lent itself to
35
For arguments against putting social rights in postcommunist constitutions, see Cass Sunstein,
Against Positive Rights, 2 E. EUR. CONST. REV. 3538 (1993); Zdzislaw Kedzia, The Implementation of
Social and Economic Rights in Central and Eastern European Countries, in DIE DURCHSETZUNG
WIRTSCHSFTLICHER UND SOZIALER GRUNDRECHTE. EINE RECHTSVERGLEICHENDE BESTANSAUFNAHME 24247
(Franz Matscher ed., Kehl am Rhein 1992). For the opposite view, see Herman Schwartz, In Defense
of Aiming High, 1(2) E. EUR. CONST. REV. 25 (1992); Herman Schwartz, Do Economic and Social
Rights Belong in a Constitution? 10 AM. U. J. INTL L. & POLY 1233 (1995).
36

Article 81 of the Constitution says that some enumerated social rights can be claimed only
within the limits set by statute. Such rights include a minimum wage and policy of full employment (art. 65(4)(5)), the right to safe and healthy working conditions (art. 66), as well as the
states duty to protect the disabled (art. 69), to help families (art. 71), and to protect the environment (art. 74). POLAND CONST. (1997) arts. 65(4)(5), 66, 69, 71, and 81.

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borrowing was a constitutional court. In almost every postcommunist country

a new constitutional court emerged, patterned after West European models.
Constitution makers usually adopted a number of general provisions mandating
the formation of a court and leaving its detailed organization to legislation.
In most cases, the organization of such a court and its competencies were
copied, often down to minute details, from foreign examples.

5. The actors in borrowing

There are two categories of actors in borrowing. One will be called
the messengers. These are the experts, including constitutional scholars;
diplomats; the personnel of international organizations; human rights
activists; etc.all of whom try to bring proposals and solutions to the drafters.
The drafters are the recipients. They listen to such proposals and accept,
reject, revise, or distort them.
5.1 The messengers

The discussion of messengers is limited to experts because of personal

experience.37 In Poland, the role of experts was relatively limited, particularly
for the transplantation of foreign models and solutions. Members of the commissions listened to experts, asked questions, and watched carefully that
experts did not cross the line, i.e., did not impose their own proposals.38 Quite
often experts ideas were rejected outright as foreign imports. As a result,
even when drafting bodies were adopting foreign institutions, often it was
semiconscious.39
Borrowing may seem more likely to occur when foreign experts participate
in drafting. The participation of experts was pretty common both in the
drafting of the postcolonial constitutions in the 1960s1970s as well as in
the postcommunist transitions after 1989. But even in this situation, the
extent of influence can be questioned.
The first question concerns the willingness of drafters to listen to foreign
experts. This, in turn, depends on the way in which those experts get involved
in the process. In hindsight, the supply of foreign experts in nonwestern
countries, particularly in Central and Eastern European constitution drafting
37

I was a member of a number of constitutional committees in Poland.

38

The role of experts and attitudes toward experts varied in different constitutional processes.
While the German Basic Law of 1949 and the French 1958 Constitution were prepared by committees of experts without participation of politicians or parliamentarians, the Spanish
Parliament decided in 1977 that a new constitution should be prepared by a parliamentary committee without inviting experts, because they might push their own agenda.
39
For example, the final big Constitution of Poland adopted in 1997 moved the system of power
toward the chancellor model first tested in Germany but there was relatively little discussion
about its German origins or experience with this system of distribution of power.

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after 1989, was higher than the demand for them. With every new wave of
constitution making, constitutional scholars in the West looked for connections to transition countries and rushed in. Many scholars with Central
European origins returned to their former countries because they knew people
who had become top decision makers. Others used the channels of diplomacy
or international organizations.
Constitution makers and leaders of transition countries soon became tired of
foreign experts. Some could be arrogant, insensitive to local needs, lacking in
knowledge of local traditions, and, sometimes, mediocre. In a few years, the
rush ended as abruptly as it had begun. Except for a handful of institutionalized
centers for the study of constitutional change, there was no continued interest
by experts in giving advice or even observing the process.
Czechoslovakia, however, represents a successful case of foreign help
offered by an international group of twenty-five experts from the United
States, Canada, France, Austria, and Great Britain. The group was led by Lloyd
N. Cutler and Herman Schwartz. Cutler was a prominent Washington, D.C.,
lawyer who had served as counsel to President Jimmy Carter (and later to
President Bill Clinton). Schwartz, a professor at American University Law
School in Washington, D.C., had monitored prison conditions in Eastern
Europe for Human Rights Watch in the 1980s. In Czechoslovakia, his interpreter was Helena Klimova, who also served as Vaclav Havels translator.
During the December 1989 events in Prague, Klimova put Schwartz, who was
then in Prague, in touch with Zdenek Jicinsky, one of the Charter 77 dissidents
who had been working on a new constitution. They talked about possible
foreign help in drafting. At the same time, Wendy Luers, wife of the former U.S.
ambassador to Czechoslovakia met with Lloyd Cutler and Vaclav Havel to
discuss the same issue. Luers suggested that Schwartz and Cutler form
an international advisory group; she raised money from a private donor to
cover their travel expenses and subsequently she ran the effort through the
Charter 77 New York Foundation that she directed.40 Notably, Schwartz and
Cutler began by making sure that the Czech and Slovak drafters really wanted
them. They received a confirmation from Jan Czarnogorsky, then deputy prime
minister in charge of the legal and constitutional-drafting process. By
February 1990, an international group was formed, and in MarchApril the
first meetings with the Czechoslovak drafting committee took place.41
The group influenced, to some degree, the Czechoslovak Bill of Rights and
Fundamental Freedoms,42 which was adopted in the fall of 1990. After the
40

It is worth noting that the members of the group volunteered their time without fees or honoraria.

41

The group included, among others, Lawrence Tribe, Eric Stein, and Dick Howard from the U.S.,
Bernard Bogdanor from England, Helmut Steinberger from Germany, Roger Errera from France,
and Herbert Hausmaninger from Austria.
42
The Czechoslovaks had their own draft, which was submitted to discussion with the group in
Bratislava. Subsequently, Peter Kresak produced another draft, taking into consideration many
suggestions of foreign advisers. Herman Schwartz and Dick Howard worked for a few days in

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split of the country it was upheld by the new Constitution of the Czech
Republic and incorporated, with some changes, as a chapter of the
Constitution of Slovakia. The group failed, however, in the second item on its
agendahelping the Czechs and Slovaks agree on a workable federalism. The
split of the country terminated this effort, although Schwartz remained
involved in work on the Slovak Constitution.
The relative success of the CutlerSchwartz group resulted from its
international composition, which meant the group did not push any particular foreign model. Another important factor was the leaders humility. In a
moving account of this venture, Herman Schwartz describes the limitations of
foreign advisers, their ignorance of local tradition, the differences in conceptual apparatus, as well as the necessity of relying on interpreters, all of which
contributed to what one Czechoslovak expert called the dialogue of the
deaf.43 Schwartz perceived their work as advising, and he does not recall any
clear case of direct borrowing. Nevertheless, the group had an impact, perhaps
because it set out with limited goals. The goal of the foreign experts is not to
write other countries constitutions, writes Schwartz, but to help make up
for the inevitable ignorance about constitutional developments in the West
that afflicts almost all the East Europeans.44
Compared with similar efforts, it seems that the key to the success of the
CutlerSchwartz group was that it made sure that the Czechoslovak drafters
wanted their help. When such help was not sought, foreign experts were much
less effective and possibly had a negative impact, as in a Polish case when
foreign experts were imposed on a constitutional committee.45
There appear to be only a few cases where the initiative to secure foreign
experts originated with the drafters.46 One example was an international effort
Prague on that version. Finally, the Czechoslovak drafters decided to adopt some of their proposals
and submitted the final draft to the Assembly.
43
For a detailed description of this effort, see Herman Schwartz, Constitutional Developments in East
Central Europe, J. INTL AFF. 71, 7778 (1991).
44

Id. at 78.

45

In the spring of 1991, I invited Herman Schwartz and his Austrian colleague Herbert
Hausmaninger to meet with the Constitutional Committee of Polands Senate to which I was an
adviser. The Committee finished drafting the chapter on rights and freedoms, and I insisted that
foreign experts assess the project. (In the perspective of borrowing, it is important to admit that
I was trying to use the foreign experts status to push for some changes in the draft that seemed to
me important but to which the Committee had had a deaf ear.) This turned out rather badly, when
the press reported some critical remarks made by the guests about the draft. The chairwoman of
the Committee felt offended and asked Schwartz for a printed letter of explanation and admiration
for the job done by the Committee. The Committee introduced no changes to the draft, even in
cases in which they agreed with remarks of the experts.
46
An interesting, although never finalized, example came from Bulgaria. In 1991, Snezhana
Botusharova, then the vice president of the National Assembly of the Republic of Bulgaria, asked
for help. The former parliament, dominated by Communists, had adopted a new Constitution that
seemed unsatisfactory to liberals and democrats. Botusharova knew that a group of constitutional

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in the Republic of Georgia, where the experts were contracted for by the USAID
and sent by the Constitutional and Legislative Policy Institute in Budapest, to
advise in the constitutional process. The two groups helped the Georgian
drafters to prepare the Bill of Rights and a law on the newly established
Constitutional Court. Another case was when Herman Schwartz (in his
individual capacity) was invited, via Human Rights Watch contacts, to
Estonia, where he helped draft a new constitution.47
Ten years later, reflecting on his experience, Schwartz recalls giving East
European partners very general suggestions rather than pushing specific solutions.48 For example, he suggested that the Estonian drafters consider taking from
the U.S. constitutional heritage the principles of judicial review and separation of
powers but advised them not to follow the American model of judicial review. He
insisted that every country should have a bill of rights and, even more importantly, a statute that would provide for accessible remedies to safeguard the rights.
If Schwartz pushed for anything, it was the necessity of introducing a freedom of
information act because democracy cannot survive without open government.
Even here, however, he did not suggest that a specific act be copied. 49
But even the CutlerSchwartz group was not always embraced with
enthusiasm. In late 1990, in Bulgaria, one local expert grumbled to Schwartz,
What do you people know about our country? This seems like just more
American imperialism.50 Such reactions to foreign advisers were quite
scholars had formed the Center for the Study of Constitutionalism in Eastern Europe at the
University of Chicago Law School. She asked if we could come to Bulgaria to help prepare amendments to that Constitution. Since the Bulgarian parliament did not have money for airfares, I turned
to George Soros, chairman of the Open Society Foundation, for help. He said that it should be done
in a proper way and suggested that an institute that would process similar requests be established in
Budapest. This took some time during which the reformatting zeal of Bulgarian anti-Communist
majority weakened and they became pretty happy with the 1990 Constitution. We never got to
Bulgaria but the lasting result of the request was the Constitutional Policy Institute at the Open
Society Foundation (COLPI). With time, COLPI got involved in work on a new constitution in Georgia
after the drafters in that country turned to Professor Alex Blankenagel from Germany for help.
47

After the completion of his last mission to Estonia, a cab driver who took Schwartz to the
airport, recognized him from television programs and turned to him: Arent you the father of our
Constitution?
48
This information comes from a private interview given by Herman Schwartz for the purpose of
this essay.
49

It would be interesting to trace actual results of constitutional advising across borders. How do
new constitutions reflect the impact of foreign advisers? More specifically, was it of some consequence that French experts tended to go to Romania, where they could be better understood
than elsewhere, Austrians and Germans to Czechoslovakia, and the Americans to Poland? Did
these influences exceed what could have been expected anyway from the fact that each of these
countries belonged to particular cultural sphere of influences? Why did the Romanians borrow
more from the French model than the Poles from the American one? Have the foreign advisers had
a durable impact on the transition to constitutionalism?
50

Schwartz, supra note 43, at 77.

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common. The arguments for rejection were always the same: We are different.
You do not know our history.51 We cannot change too much at once.
5.2 The recipients

Often there were important reasons to reject even the best advice. This usually
was the case when the drafters represented institutions that might be affected
by a new constitution. Any reallocation of power necessarily becomes a subject of grave controversy and does not always lend itself to compromise. When
constitution making is entrusted to parliaments, the drafters have a vested
interest in opting for some version of a parliamentary government. In Eastern
Europe, all the constituent assemblies have also served as legislative assemblies, wrote Jon Elster in 1991. Moreover, many of the framers no doubt
expect to be elected to the first ordinary parliament. In consequence, they have
clear incentive to invest large powers in parliament, and no incentive to create
checks on parliamentary power.52 No wonder that a majority of drafts prepared by legislative commissions opted for a parliamentary system of government. Similarly, presidents usually aimed at the increase of the power
of their office and the introduction of some type of presidential or semipresidential model.
This was the case with the Polish Senate. It was formed, in 1989, with the
narrow political end of being an instrument of transition from communism.53
When this aim was met, there was not much room or need for an upper house
in a unitary state with no aristocracy that had to be accommodated into the
system. The Senate never played a constructive role, but disposing of it would
require that at least half the members of the Senate commit political suicide.
Senators therefore tended to emphasize the necessity and usefulness of their
house.54 Understandably, self-interest often plays a larger role than a general
vision of the state or consistency in the states structure. During the hearings
51
Quite often, the drafters wanted to go back to constitutional solutions from before communism
that made little sense to foreign experts.
52

Jon Elster, Human Rights and the Constitution-Making Process, in CONSTITUTIONALISM AND RIGHTS,
1, PAPERS OF THE INTERNATIONAL CONFERENCE: HUMAN RIGHTS AND FREEDOMS IN NEW CONSTITUTIONS IN
CENTRAL AND EASTERN EUROPE 6 (Andrzej Rzeplinski ed., Helsinki Foundation for Human Rights 1992).
VOL.

53
When the opposition did not want to agree to strong powers for the president, the Communists
suggested the Senate as a trade off. As distinct from the Sejm, in which 65 percent of seats were
reserved for the candidates from the list submitted by the Communists, the Senate would be elected
completely freely. The anticommunist opposition embraced the idea not because they had dreamed
about a Senate but primarily because they wanted to have at least one set of completely free
elections and believed that, once they won in the Senate race, the upper house would help the
opposition to control communist government and provide them with a platform. See Wiktor
Osiatynski, The Roundtable Talks in Poland, in THE ROUNDTABLE TALKS AND THE BREAKDOWN OF
COMMUNISM 21, 46, 56 (Jon Elster ed., Univ. of Chicago Press 1996).
54
The only exception was Donald Tusk, a deputy speaker of the Senate, in 19972001, who stated
publicly that the Senate was useless, wasteful, and should be abolished.

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before the Constitutional Committee, the representatives of such institutions

as the Supreme Court, Constitutional Court, Supreme Administrative Court,
the Procuracy, the Central Bank, and other high state bodies tried to prove how
important these offices were.
The case of judicial reform in Poland is telling. By the mid-1990s, when
work on the new Constitution was already quite advanced, it became obvious
that the creation of a constitutional culture might be much harder than it had
been assumed in 1989. A particular problem was the reluctance of ordinary
judges to apply the Constitution in their adjudication. A number of drafters55
suggested discussing whether the adoption of the U.S. diffuse model of judicial review would not help speed up the transition to constitutionalism. But
even the first informal remarks on such a possibility brought about a hostile
response from the Constitutional Tribunal, the Supreme Administrative Court,
and other judicial bodies that under the civil law system are independent from
the Supreme Court.
Any change in the power structure is extremely difficult, as the story of
Polands transition makes clear. The system inherited from communism had
a formal parliamentary structure to which various elements were added. After
the Roundtable agreement, the institution of the presidency was reintroduced
with a strong veto power (two-thirds needed to overcome it) and exclusive
competencies in foreign affairs, the military, and internal security.56 In the
spring of 1990, a new amendment to the 1952 Constitution provided for the
popular election of the president. This gave the president an independent
source of legitimacy and thus further increased his power. All these mechanisms, however, were built on top of a parliamentary system. No wonder that
the first years of transition in Poland were marked by constant conf licts
between the president, prime ministers, and the parliament.
Polish experience suggests that in the choice of the model of government,
the most important factor is the actual distribution of power during constitution making. This factor helps explain the limited impact of constitutional
experts and foreign models. All theoretical considerations, rational choices
between various models, and foreign examples can be used as arguments. The
question is, who has the real power to implement what he wants.57

55

Including the author of this piece.

56

This measure was to safeguard Soviet interests and protect Polish communists against retribution. See Osiatynski, supra note 53.
57
This could explain many anomalies in political systems of the countries in transition. For
example, before the 1990s one of the crucial elements of the parliamentary system was single popular election to the legislature that would then select a prime minister as the head of government
and elect a president as a head of the state. (Austria, Finland, Ireland, and a few other countries
were considered exceptions to that rule.) In the 1990s, however, many postcommunist countries
created parliamentary systems with popularly elected presidents.

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6. Social and cultural factors

Culture usually tends to resist borrowing. Recently, the idea of international
human rights has been challenged by many representatives of non-Western
cultures as a tool of moral imperialism, serving those who want to impose
Western values on the rest of the world. While there exists a real need for
cross-cultural debate on human rights, quite often cultural relativism has
served as an argument to reject international standards, to avoid scrutiny, and
to justify oppression by dictatorial states.58
In the same vein, cultural differences often compel drafters to modify borrowed institutions. Recently, Cheryl Saunders used the example of British and
American influence on the constitutional history of Australia to demonstrate
the effects of culture on constitutional transplants.59
Cultural identity played a significant role in the departures from international human rights standards in a number of postcommunist constitutions.
One such issue was the protection of minorities, particularly in the Baltic
states, Slovakia, Romania, Hungary, and ex-Yugoslav countries. For example,
the Slovak Constitution ruled out affirmative action that would aim at equalizing the opportunities afforded to minorities.60 Latvia introduced a limitation
on citizenship rights for Russians, even if they had lived in the territory of this
former Soviet republic for tens of years. Cultural identity also led to the rejection of the separation of church and state and to the constitutionalization of
the rights of family in the Constitution of Poland.61 Social and ideological
needs prompted Portuguese and Spanish drafters to reject traditional models
of treating social rights in their constitutions and to create an altogether
58

See Adamantia Pollis, Cultural Relativism Revisited: Through a State Prism, 18 HUM. RTS. Q. 316
(1996).
59

It is all the more telling because the cultures of the peoples of both the donor and the recipient
countries are, at least ostensibly similar. The course of Australian constitutional development
raises all the usual questions about the effects of culture in constitutional transplantations. It
demonstrates the added complexity where more than one constitutional tradition is drawn upon,
for the purposes of a new polity. It shows the need to understand the impact of culture on constitutional models in their original contexts, as well as the cultural influences that are likely to be
brought to bear once transplantation has taken place. Saunders, supra note 1, at 5354.
60
Article 34(3) of the Slovak Constitution added the following provision, which was absent in the
federal Charter of Fundamental Rights and Freedoms: The enactment of the rights of citizens
belonging to national minorities and ethnic groups guaranteed in this Constitution must not be
conducive to jeopardizing the sovereignty and territorial integrity of the Slovak Republic or to discrimination against its other inhabitants. In 1993, the Constitutional Court of Slovakia ruled
that the Council of Europes recommendations concerning standards on minority rights do not
and cannot have . . . legal implications for the state organs of the Slovak Republic. Constitution
Watch, Slovakia, 2(4) & 3(1) E. EUR. CONST. REV. 18 (199394).
61
The formulas of respect for [the] autonomy and the mutual independence of church and
state and of the principle of cooperation, (article 25(3)) was consciously borrowed from the
documents of the Vatican Council II.

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new solution, described above. Similarly, a cultural and social tradition of

egalitarianism in Slovak society prompted the makers of the new Constitution
to increase the protection of social rights in the Constitution of their country
compared to what was offered by the Czechoslovak Charter of Rights.62
Social conditions not only play an important role in borrowing but may
even decide the success or failure of constitutional transplantations. Some
institutions that work very well in one set of social conditions may be useless
or even destructive in other. Constitutions can lay down the rules and principles, but by themselves these rules and principles will not change society.63
Social and cultural factors can also be helpful in explaining the striking
differences in the impact of American constitutionalism among the four
countries that it influenced after World War II. In Germany and Japan, its
influence on conquered former enemies helped to establish constitutional
democracy. In the Philippines and South Korea, however, the adoption of some
American ideas by allied governments did not change, at least for a very long
time, the basically autocratic character of these regimes. Social conditions can
also explain why some American constitutional ideas, such as the idea of
rights, were rejected throughout the world in the nineteenth century and
became much more acceptable after World War II. Perhaps one of the
reasons was that during and after the New Deal, the American concept of
freedom from government was changed to include some elements of the
freedom through government. The latter concept was much more appealing
to, and needed by, people outside the United States.
6.1 Misfired borrowing

Sometimes, the failure to understand cultural differences creates unintended

consequences. One example is related to the choice of mechanisms and strategies
for the protection of minorities after World War I.
The issue of minority protection was raised by President Woodrow Wilson,
in May 1919, at the meeting of the Council of Four in connection with
the danger of anti-Semitism in Poland and Romania. Wilson also insisted on
the inclusion of minority provisions in the peace treaty with Germany because
millions of Germans were to live within the boundaries of the recreated Polish
state.
At Versailles, two conceptions for dealing with minorities clashed.
Some European leaders, including Marshall Pilsudski of Poland, advocated the
62
The Slovak Constitution affords employees, among other rights, the right to remuneration for
work done, sufficient to ensure the employees dignified standard of living, (36(a)) adequate rest
after work, (36(e)) and the shortest admissible period of paid leave (36(f)). SLOVAKIA CONST.
art. 36(a), (e), (f).
63

In short, there is no particular reason to suppose that a political constitution itself can necessarily conjure up the social conditions which serve as preconditions for its own success. Goodin,
supra note 2, at 225.

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concept of territorial or national autonomy within nationally federalized

states. Americans led by Wilson rejected that concept fearing that it could lead
to the formation of states within a state. They advocated forms of minority
protection that would lead to the assimilation of minorities into a larger society.
Granting equal rights for members of minorities in treaties and in constitutions was to create equal opportunities on the basis of which assimilation
could take place. Wilsons arguments prevailed at Versailles and, accordingly,
the Polish Minority Treaty and the 1921 Constitution borrowed such
ideas.64 This solution could not work. While assimilation could take place in
the United States, given its resources and fast industrialization, there existed
no melting pot in the backward, predominantly rural societies of EastCentral Europe. In addition, these societies had no other options but to create
the concept of nationhood on such exclusionary symbolic ideas as language,
religion, and national tradition. Merely granting citizens rights in constitutions was a necessarybut inadequateprecondition for the protection
of minorities. As the result, the problems of minorities were exacerbated by
borrowed solutions.65 The tragic conclusion written by history was that the
conflicts between minorities in Poland ended only after World War II when
millions of people were forcibly resettled along national lines.
This experience leads to a more general issue of the usefulness of
constitutional transplants in sharply divided societies. This subject has been
elaborated by Robert Goodin, who claims that in such situations wholesale
constitutional borrowing of the sort ordinarily practiced by drafters of new
constitutions is ruled out or should be radically restricted in its scope.66
Indeed, in some cases of extreme diversity there may be no constitutional solution, borrowed or invented.67 While secession may be the second best solution,
it is not always plausible.
Another area where successful borrowing in a formal sense, has had
serious unintended consequences is the judiciary. A majority of countries
undergoing transition implemented in their constitutions and statutes such
safeguards of judicial independence as the immunity of judges, protection
from removal from office by the executive branch, some degree of budgetary
independence, and compensation commensurate with the dignity of the

64

See Osiatynski, supra note 25, at 29495 and quoted bibliography.

65

More recently, it seems ever more obvious that a similar Wilsonian illusion was adopted by the
Dayton Agreements and generally contributed to the failure of policies in the Balkans.
66

Goodin, supra note 2, at 230.

67
. . . groups who are radically unprepared to live together without strong constitutional
guarantees of the sort here in view are probably going to prove unable to live together even with
them. . . . We cannot nail down everything in the constitution. Much must ultimately depend on
trust . . . there may be no constitutional solution to be found to the case of really radical social
diversity. Id. at 231.

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profession.68 In some countries, crucial decisions about the organization of

the judiciary, promotion, and removal of the judges and waiver of their immunity were reserved for specially formed national judicial councils.
Ten years later, doubts about judicial independence are mounting in transition countries. The corruption of judges is rampant, from Central Europe, to
Central Asia, to Africa, and to Latin America. While it is true that the courts
are less dependent on governments than other branches of the state, they seem
to be much more dependent on private pressures by organized groups, by
money interests, and by the mafia.69
In many countries, judges and their organizations, including the national
councils of the judiciary, use the principle of judicial independence to tame
criticism and to use confidentiality in disciplinary proceedings to avoid
accountability.70 Judicial councils tend to act as if they were the judges union,
protecting members interests at all costs. This raises a serious problem of
decreased social prestige of the judiciary.
Standards of tactful behavior, respect for the dignity of parties and witnesses,
and other characteristics of a good judge seem to be painfully missing among
judges in transition countries. The power of judging requires personal maturity, the ability to doubt ones own assumptions, and to weigh various values.
It also requires qualities that come only with experience, and not to everyone
at that. In the common law system a future judge is expected to gain these
qualities during a long legal career, which usually is crowned by a judicial
appointment. In the civil law system judges were perceived as clerks applying
the law under the close scrutiny of appellate courts. Superior courts were
supposed to embody higher wisdom; therefore, a supreme court had the power
to issue abstract interpretations of statutes that were binding on the lower
courts. During transition this power was taken away in the name of judicial
independence.

68

Article 178(2) of the 1997 Constitution of Poland provides for remuneration consistent with
the dignity of their office. POLAND CONST. (1997), art. 178(2).
69

This development may require the reassessment of the entire concept of judicial independence
in Western democracies. Today there is more fear of corruption as a danger to judicial independence than of excessive control over the judiciary by the executive branch. This suggests the
enlargement of the concept of enforceable judicial independence from mere interference by a state
to the safeguards for independence from all parties to a case and even outside pressures seemingly
not related to a case at hand.
70
While under communism there was a fear that nonconformist judges could be punished by
the use of disciplinary proceedings, at present the main concern is the reluctance of disciplinary
bodiescomposed in most countries of fellow judgesto find judges responsible for offences.
See Open Society Institute/European Union Accession Monitoring Program, Judicial Independence in
the EU Accession Process, in MONITORING THE EU ACCESSION PROCESS: JUDICIAL INDEPENDENCE
60 (Central European Univ. Press 2001) [hereinafter Monitoring the EU Accession Process], also
available at http://eumap.org/reports/content/20.

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Now, young judges, with no life experience, maturity, tact, and other
personal skills are vested with almost unlimited power. In practice, law school
graduates go through two to three years of internship followed by a two-year
probationary period. In overloaded courts there is not enough time for supervision or training. Often, the interns adjudicate cases and their suggestions are
blindly signed by an older judge. The result is predictable: a growing number of
inexperienced, poorly trained young judges who try to draw rewards from the
power of their offices.71
In hindsight, it might have been a mistake to apply common law ideas of
judicial independence to the civil law tradition of judge-magistrates.72 The
result of this misapplication is a gross imbalance between independence and
accountability in the courts activities and in judges minds. No wonder that
recently, there have been as many complaints about the violation of human
rights (and human dignity) by courts as by the executive power. This is a serious problem, given that one of the assumptions behind judicial independence
is that judges need to be independent from other branches so they can protect
individuals from the abuse of rights by the executive and legislative branches.
This entire theory fails if the judiciary itself abuses rights.
Creative solutions to the problem of the judiciary in new democracies are
very much needed. While it would be dangerous to dispose of the idea of
judicial independence, finding ways of imposing on judges the standards of
behavior and accountability that exist in common law countries is of crucial
importance. What is uncertain, however, is who can do it now, when the
judges already are unremovable and self-governing. The search for models
from which the transition countries could borrow the mechanisms to discipline judges and to upgrade standards of the judiciary is very much needed.73

71

Judges also use the notion of independence to increase that power and profits. In 2000, a number of Polands judges submitted a case to the Constitutional Court that their salaries were not
consistent with the dignity of the office. When the Court decided that there are no grounds for
a constitutional case, the regional court in the town of Czestochowas argued that the ordinary
courts are not bound by the Constitutional Tribunals decision, as this would violate the principle
of judicial independence. Judicial Independence in Poland, in MONITORING THE EU ACCESSION REPORT,
supra note 70, [hereinafter Judicial Independence], at 30.
72
The misapplication of common law standards is also visible in some recommendations of the
monitoring report on the independence of the judiciary in European Union accession countries.
Among its general recommendations are that [w]henever possible, ordinary judges ought to have
life tenure from their first appointment. Equally doubtful is the suggestion that the influence of
constitutional courts over the judiciary must be limited in the same way as for the political
branches to ensure that it does not unduly interfere with judges proper scope of decisionmaking. Judicial Independence, supra note 71, at 25. Contrary to this suggestion, it seems that
constitutional courts may be the only bodies that can impose discipline on the judiciary and push
the judges toward applying constitutions in their adjudication.
73
Perhaps the French experience can be useful since the judges in that country used to have
an even worse reputation than their East European colleagues have today.

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6.2 Sequencing transition to constitutionalism

The unintended consequences of institutional borrowing raise the problem of

sequencing particular elements in transition. There is evidence that some
institutions inherited from previous regimes received powers and immunities
before they reformed themselves and then used these prerogatives to block
necessary reforms. The grant of independence to subservient, demoralized, or
corrupt judges is merely one example. The introduction of market capitalism,
without first establishing effective mechanisms to enforce private contracts,
opened room for the growth of organized crime.74 The decentralization and
empowerment of local self-government before the establishment of the rule of
law and a system of administrative remedies accessible to individuals led to
widespread corruption, abuse of power, and alienation of the local population.
The borrowed idea of coalition governments turned out to be the vehicle for
clientelism, and the proliferation of unnecessary state offices.
A related issue is that of the vast powers granted to new institutions
without necessary limitations. No wonder that constitutional courts almost
everywhere began their activity by grabbing as much power as possible.
Sometimes, constitutional courts engaged in an open struggle for power, as
was the case with Valery Zorkins court in Russia,75 where the end result was
the weakening of the Constitutional Court itself. A similar drive for power was
seen with some central banks, such as the Bank of Russia, which received
large powers based on the Western model, and then used this power to block
reforms of the banking system. One area worth exploring is whether it is possible to work out guidelines for sequencing reforms, including the introduction
of borrowed institutions, so that their negative consequences are minimized.
Another problem concerns sequencing the order of the two indispensable
elements of the transition to constitutionalism: the adoption of a constitution
and the change in consciousness that will result in a constitution being treated
seriously by politicians, judges, and citizens. At the beginning of the transition
in East Central Europe, there existed neither enforceable constitutions nor the
culture needed to make any constitution work. Which should be attended to
first? Should we undertake a broad educational attempt to create a constitutional culture and adopt a constitution only after such a culture is formed?
Or should we enact a constitution first and then use it to form a constitutional
culture? Poland tried to do both at the same time, i.e., to use the process of
constitution making for a broad educational effort about constitutionalism.
74
Under communism, private contracts were rare and were not given adequate protection because
the constitutions distinguished between strongly protected state property and merely tolerated private possessions. In the 1990s, it took on average at least two years to obtain a judgment in a civil
case, and there was almost no mechanism to execute judgments. Since the award given would
usually be limited to the nominal debt and moderate interest without allowance for rampaging
inflation, the use of thugs to recover debts was almost inevitable.
75

See Schwartz, supra note 22, at 11744.

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In fact, however, politicians used the referendum campaign for a constitution

to win support for their own parties rather than to solidify a constitutional
compromise. The constitution became divisive, did not teach any lesson to anybody, and did not work. We learned that constitutional culture is best built by
the application of a constitution in daily life. There also exists a very powerful
practical argument not to delay the adoption of a new constitution until social
consciousness changes. There is much evidence that once a short-lived
constitutional moment is missed, it becomes more difficult to reach a constitutional agreement about rules and principles, particularly in conditions of a
simultaneous transition to constitutionalism and democracy.76

7. In lieu of conclusions
There are no clear conclusions for this essay except that borrowing is a
complex and difficult issue that deserves further study. Instead of conclusions,
I will end with two thoughts, one based on the experience of the past and the
other directed toward the future.
In a summary of extremely thorough research on constitution making
in the postcommunist world, Rett R. Ludwikowski formulated a concept of
constitutional gardening as distinct from constitutional engineering or
surgical transplanting.77 This is how the author explained the difference:
An engineers or surgeons work requires some level of exactitude; their
freedom to experiment is limited. In contrast, the constitutional gardeners
did not try to construct their products from well-tested components or to
transplant organs into accomplished social organisms. Rather, they were
picking seedlings from different gardens and implanting them, piece by
piece, into living and constantly changing vegetation composed of rules,
norms, and institutions. The new gardens do not resemble traditional
French or British parks, they have a mixed character, blending together
features produced by different tastes, cultures, and styles.78
The future-directed thought concerns limitations on any borrowing, even
the most successful. Constitutions are not only about introducing the best
mechanisms and institutions. Constitutions are also about legitimacy, citizenship, and identity. These cannot be borrowed. Further, borrowing can be paternalistic. Elites can borrow institutions from abroad. They can grant
76

See JON ELSTER ET AL., INSTITUTIONAL DESIGN IN POST-COMMUNIST SOCIETIES: REBUILDING THE SHIP AT SEA
(Cambridge Univ. Press 1998); Wiktor Osiatynski, The Constitutional Honeymoon Is Over:
The Paradoxes of Post-Communist Constitution Making, in THE PARADOXES OF UNINTENDED CONSEQUENCES
(Lord Dahrendorf et al., eds., Central European Univ. Press 2000).
77

See Rett R. Ludwikowski, Mixed ConstitutionsProduct of an East-Central European

Constitutional Melting Pot, 16 B.U. INTL. L.J. 1, 64 (1998).

78

Ludwikowski in CONSTITUTIONAL CULTURES, supra note 1, at 62.

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constitutional rights adopted from the international agreements. When they

are transplanted by elites from these sources without societal dialogue, their
legitimacy will be rather weak. Legitimacy and common identity can come
only as a result of a nationwide process of rule making that does not exclude
any social, national, ethnic, or cultural group. The lack of such legitimacy may
be one reason why many people in developing countries are, at present, challenging Western concepts of constitutionalism and human rights. They call
for a new wave of constitution making that will not focus solely on the quality
of constitutional mechanisms and institutions but will be guided by the principles of inclusion and participation in the process of making constitutions.