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NUMERO 20 - 29/10/2014

 BRICS as Constitutional Inhomogenous Dynamics

  This paper fits into the line of research of the “Centro Didattico Euroamericano sulle Politiche Costituzionali” of the University of Salento and wants to study the consequences of the BRICS phenomenon in the context of contemporary constitutionalism. In literature, the BRICS phenomenon is usually analyzed in the context of international relations and experiences of economic blocs. In this perspective, the fundamental differences between the BRICS and supranational economic blocs are classified in terms of “absence, lack”: the absence of geographical proximity; the absence of bilateral and multilateral relations that are common among the BRICS countries; the absence of converged economic systems; the absence of stable organizational structures to represent the economic bloc; the absence of an internal leadership; the absence of direct or indirect democratic legitimacy in the promotion of the BRICS phenomenon; the absence of common tariff, customs and monetary policies. However, these are descriptive distinctions, say anything about the differences of the constitutional impact that the BRICS phenomenon can produce if compared with the already experimented dynamics of supranational and international cooperation. The paper aims to deepen the study of the dynamics of the BRICS as a particular practice of interstate relations that produces legal flows and communication vectors that are different from those experienced in the supranational integrations and in the regional processes; but, the BRICS does not create standardization, harmonization and unification of the law of the member States. For this reason, the article begins with an analysis of contemporary theories in relation to the three main themes specified in the premise to this study: - The differences between supranational and regional processes; - The differences between legal harmonization, standardization and unification; - The differences between the legal flows, from which hypothesis of legal transplants or Policy Transfer may result. On these basis, we will observe how the BRICS functions inside a completely different and original logic if compared with supra-nationality and regionalism. First of all, in comparison with the cross-border processes, the BRICS is different because it is not based on the principle of homogeneity nor operates according to the functional logic of the “non-controversial areas”, with reference to the theories of D. Mitrany. The BRICS is not only uninterested to the formal and structural un-homogeneity of the member countries, but uses this un-homogeneity as competitive element of international cooperation that does not require any kind of structural “conditionality”. Second, with respect to regional processes, the BRICS does not pursue the harmonization or standardization of the law. The countries that make up the legal systems are different from each other because there is the coexistence of multiple legal traditions (the Western, indigenous, Muslim, Hindu, and the Confucian tradition). The paper suggests the conclusion that the BRICS functions because the partner countries share a common “political formula”: the “deliberative dictatorship” of their system of government... (segue)

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