From Foreign Text to Local Meaning: The Politics of Religious Exclusion in Transnational Constitutional Borrowing

Nelson, Matthew J.; Bâli, Aslı Ü.; Mednicoff, David; Lerner, Hanna

Abstract

Constitutional drafters often look to foreign constitutional models, ideas, and texts for inspiration; many are explicit about their foreign borrowing. However, when implemented domestically, the meaning of borrowed elements often changes. Political scientists and scholars of comparative constitutional law have analyzed the transnational movement of constitutional ideas and norms, but the political processes through which the meaning of foreign provisions might be refashioned remain understudied. Socio-legal scholars have examined the “transplantation” and “translation” of laws and legal institutions, but they rarely scrutinize this process in the context of constitutions. Drawing on an examination of borrowed constitutional elements in four cases (Pakistan, Morocco, Egypt, Israel), this article builds on research in comparative politics, comparative constitutional law, and socio-legal studies to provide a nuanced picture of deliberate efforts to import “inclusive” constitutional provisions regarding religion-state relations while, at the same time, refashioning the meaning of those provisions in ways that “exclude” specific forms of religious, sectarian, doctrinal, or ideological diversity. Building on socio-legal studies regarding the translation of law, we argue that foreign constitutional elements embraced by politically embedded actors are often treated as “empty signifiers” with meanings that are deliberately transformed. Tracing the processes that lead political actors to engage foreign constitutional elements, even if they have no intention of transplanting their prior meaning, we highlight the need for detailed case studies to reveal both the international and the national dynamics that shape and re-shape the meaning of constitutions today.

Citation

Nelson, M. J., Bâli, A. Ü., Mednicoff, D., & Lerner, H. (2020). From Foreign Text to Local Meaning: The Politics of Religious Exclusion in Transnational Constitutional Borrowing. Law & Social Inquiry, 45(4), 935-964. https://doi.org/10.1017/lsi.2019.75

• Journal Article Type: Article
• Acceptance Date: Sep 16, 2019
• Online Publication Date: Apr 14, 2020
• Publication Date: Apr 14, 2020
• Deposit Date: Nov 13, 2019
• Publicly Available Date: Nov 13, 2019
• Journal: Law and Social Inquiry
• Print ISSN: 0897-6546
• Electronic ISSN: 1747-4469
• Publisher: Cambridge University Press
• Peer Reviewed: Peer Reviewed
• Volume: 45
• Issue: 4
• Pages: 935-964
• DOI: https://doi.org/10.1017/lsi.2019.75
• Keywords: constitutions, constitution-making, constitutional borrowing, constitutional identity, Pakistan, Morocco, Egypt, Israel