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Abusive Constitutional BorrowingLegal globalization and the subversion of liberal democracy$
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Rosalind Dixon and David Landau

Print publication date: 2021

Print ISBN-13: 9780192893765

Published to Oxford Scholarship Online: August 2021

DOI: 10.1093/oso/9780192893765.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 04 December 2021

The Concept and Scope of Abusive Constitutional Borrowing

The Concept and Scope of Abusive Constitutional Borrowing

(p.36) 3 The Concept and Scope of Abusive Constitutional Borrowing
Abusive Constitutional Borrowing

Rosalind Dixon

David Landau

Oxford University Press

This chapter elaborates the book’s concept of abusive constitutional borrowing, which is defined as the use of designs, doctrines, and concepts associated with liberal democratic constitutionalism for anti-democratic ends. All forms of abusive borrowing decouple the form of a norm from its substance, but in different ways. The chapter develops a typology of four subtypes of abusive borrowing—(1) sham borrowing, which takes the form of a norm without its substance; (2) selective borrowing, where borrowers use only part of a norm or package of norms; (3) acontextual borrowing, where a norm is intentionally transplanted into a context with different background conditions; and (4) anti-purposive borrowing, where an anti-democratic norm is repurposed to achieve the opposite of its intended purpose. Changes in the form and substance of norms are common with all borrowing, but the hallmark of abusive borrowing is that it undertakes these mutations to maximize anti-democratic impact.

Keywords:   legal borrowing, legal transplants, sham borrowing, selective borrowing, anti-purposive borrowing, acontextual borrowing, comparative law

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