Grafting Social Rights Onto Hostile Constitutions

Abstract

An old metaphor used to understand legal reforms describes current law as a large and tranquil lake, and legal reforms as leaves that fall onto that lake. These reforms, like leaves, rest atop the existing law (the peaceful lake) and seem, at first, to be alien to it. For a long time, the new law and the old seem like distinct bodies and each maintains its own identity. Similarly, the leaves float on the lake, unharmed, as though they have not realized their contact with the lake. However, time passes and, little by little, the makeup of the new law changes—the leaves give in—and the interior architecture of the reform begins to lose strength. Little by little, reforms that seemed like foreign bodies to the old law begin to modify their texture to resemble that of the law on which they rest. Time passes and the reforms, like damp leaves, no longer appear to be distinct bodies. Now, the old law and the new, just like the lake and the fallen leaves, create one body. However, are these images really appropriate for thinking about the links that are created, slowly, between old and new laws? A cursory look at this metaphor suggests a somewhat quick and nonconfrontational adaptation between the established body and the newly arrived one. The metaphor suggests that it is just a matter of time until the process ends happily, with the smooth integration of one part with the other, after both have given in and abandoned their initial resistance. However enticing this view of the way links form between current and new laws may be, a critical look at the process suggests different results.