Hybridization: A Study in Comparative Constitutional Law

01 Jan 2010

Viewing constitutional law from a global perspective informs us about trends and concurrences that might otherwise go unnoticed. The main focus for this paper is how a new European legal tradition is being forged from two of the most influential Western traditions, the common and civil law. The term hybridization is used to refer to this phenomenon whereby there is convergence between different legal systems. This does not necessarily alter national sovereignty or substitute one system over another. It cannot be measured by success or failure of one legal system over another. It is a common sharing that is best understood through an understanding of the constitutional and legal culture of different countries. In the first instance this hybridization was driven by private law. This has now given way to a European Administrative Law with important constitutional consequences, particularly for the role of courts and institutions. The hybridisation process in the European Union provides an important example for comparative law. The Treaty of Lisbon is the most recent manifestation of how convergence of legal systems in 27 Member States may be achieved while maintaining elements of national and legal sovereignty at the level of the Member State. It holds lessons for the study of constitutional law and its analysis in a global environment. Human rights -similarly may provide an overarching framework that permits hybridization while retaining national societal influences. In that context Japan is a useful case study that similarly shows how adaptation may be accommodated through importing different legal systems while retaining national cultural and societal attitudes. Hybridization requires legal transfers to be studied but equally to recognise the constitutional, legal and cultural consequences of change.