Lawp 400 Constitution, Human Rights Law and Legal Research Assignment 2

Assignment 2

‘It seems that constitutions are been influenced by other constitutions’. You are to determine whether or not this statement holds true or otherwise. You are to identify provisions (if any) that have been adopted by constitutions through the influence of other constitutions.

You can draw example from any constitution(s).

Part I: The Theoretical Framework of Constitutional Borrowing 

This section lays the groundwork by categorizing the types of borrowing and the motivations behind them.

• Typologies of Borrowing:
  • Direct Replication: A rare, almost verbatim adoption of a provision (e.g., early post-colonial constitutions)
  • Indirect Borrowing/ Adaptation: The most common form, where a core idea is adopted but modified to fit the domestic context, culture, and legal history.
  • Symbolic Borrowing: The adoption of a provision primarily for its symbolic value or to gain international legitimacy, even if it has little practical effect.
• Drivers and Motivation of Borrowing

Part II: Landmark Case Studies of Constitutional Diffusion

The 2013 Fiji Constitution: A Case Study of Influence Case Study: The Japanese Constitution (1947):

• The Influence of the British Westminister System:
  • The UK as a “Lender”:
  • Case Study: The Canadian Constitution:
  • Case Study: The Australian Constitution:
• The Modern Hybrid: South Africa’s Constitution (1996)

Assessment Requirements Summary

The assignment requires students to critically analyze the statement: “It seems that constitutions are influenced by other constitutions”. The key tasks include:

1. Theoretical Framework of Constitutional Borrowing

   • Define the concept of constitutional borrowing.
   • Categorize types of borrowing:
     • Direct Replication verbatim adoption of provisions.
     • Indirect Borrowing/Adaptation adoption with modifications for local context.
     • Symbolic Borrowing adoption for legitimacy or symbolic purposes.
   • Explain the drivers and motivations behind borrowing provisions.

2. Landmark Case Studies of Constitutional Diffusion

   • Analyze specific constitutions as examples of borrowing:
     • Fiji Constitution (2013)
     • Japanese Constitution (1947)
     • British Westminster System influence
     • Canadian Constitution
     • Australian Constitution
     • South African Constitution (1996) as a modern hybrid

3. Critical Analysis

   • Identify provisions adopted or influenced by other constitutions.
   • Assess whether borrowing is direct, adapted, or symbolic.
   • Provide evidence and justification for each example.

Step-by-Step Approach Guided by Academic Mentor

Step 1: Understanding the Theoretical Framework

• The mentor first helped the student define constitutional borrowing and explained the typologies.
• Examples of each type were provided to clarify differences.
• Students were encouraged to link motivation with historical and political context, e.g., post-colonial states adopting British legal structures.

Step 2: Selection of Case Studies

• The mentor guided the student to choose constitutions with clear evidence of borrowing.
• Each case study was analyzed in terms of:
  • Source of influence
  • Type of borrowing
  • Purpose and outcome of adoption
• Emphasis was placed on critical evaluation rather than just description, ensuring the student assessed the practical impact of the borrowed provisions.

Step 3: Drafting Case Study Sections

• For each constitution, the mentor advised a structured approach:
  1. Historical context and background
  2. Provisions influenced or borrowed
  3. Type of borrowing (direct, indirect, symbolic)
  4. Critical reflection on effectiveness or symbolism
• Visual aids such as tables or comparative charts were suggested to make the analysis clear and concise.

Step 4: Synthesis and Conclusion

• The mentor guided the student to connect the theoretical framework to the case studies, demonstrating how different types of borrowing are applied in practice.

• The final conclusion summarized whether the statement holds true across different contexts and identified key patterns.

Outcome Achieved

• A well-structured assignment linking theoretical concepts with real-world examples.
• Clear identification of borrowing types and their motivations.
• Comparative analysis of constitutions from different jurisdictions.
• Critical reflection on the impact and relevance of borrowed provisions.

Learning Objectives Covered

1. Develop a thorough understanding of constitutional borrowing and diffusion.
2. Apply theoretical frameworks to real-world constitutional examples.
3. Enhance research, analytical, and critical evaluation skills.
4. Improve ability to structure and present complex legal arguments effectively.
5. Demonstrate understanding of historical, cultural, and political factors influencing constitution-making.

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