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Order from Transfer
Comparative Constitutional Design and Legal Culture
9781781952108 Edward Elgar Publishing
Constitutional orders and legal regimes are established and changed through the importing and exporting of ideas and ideologies, norms, institutions and arguments. The contributions in this book discuss this assumption and address theoretical questions, methodological problems and political projects connected with the transfer of constitutions and law.
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Critical Acclaim
Contributors
Contents
More Information
Constitutional orders and legal regimes are established and changed through the importing and exporting of ideas and ideologies, norms, institutions and arguments. The contributions in this book discuss this assumption and address theoretical questions, methodological problems and political projects connected with the transfer of constitutions and law.
Some of the chapters focus on the pathways, risks and side-effects of legal-constitutional transfers in specific situations, such as postcolonial societies and occupied territories. Others follow law beyond the official arenas into systems of legal pluralism, while others analyze how experimentalism generates hybrid constitutional orders.
This interdisciplinary, multi-jurisdictional study will appeal to researchers, academics and advanced students in the fields of comparative constitutional law, comparative law and legal theory.
Some of the chapters focus on the pathways, risks and side-effects of legal-constitutional transfers in specific situations, such as postcolonial societies and occupied territories. Others follow law beyond the official arenas into systems of legal pluralism, while others analyze how experimentalism generates hybrid constitutional orders.
This interdisciplinary, multi-jurisdictional study will appeal to researchers, academics and advanced students in the fields of comparative constitutional law, comparative law and legal theory.
Critical Acclaim
‘A fascinating collection of essays commenting on and developing Frankenberg’s IKEA theory of legal transfer. With valuable theoretical analyses, comparative studies, attention to gender issues, post-colonial contexts, imposed law and legal history, this book is essential reading for anyone thinking about the circulation of legal models especially, but not only, in the area of constitutional law.’
– David Nelken, University of Cardiff, UK
‘Frankenberg’s work gives a new insight of what comparative law can be in the context of globalization, representing an outstanding achievement. His theory of “transfer” supersedes the metaphors of mainstream scholarship, displaying that constitutions are not mere “commodities” or items to be assembled. The real matter is rather, which “meanings” are generated through transfer. In this way, beyond any usual flat version, we may perceive that any “constitutional relocation” exhibits a reappraisal of the whole world we live in.’
– Pier Giueseppe Monateri, University of Turin, Italy
– David Nelken, University of Cardiff, UK
‘Frankenberg’s work gives a new insight of what comparative law can be in the context of globalization, representing an outstanding achievement. His theory of “transfer” supersedes the metaphors of mainstream scholarship, displaying that constitutions are not mere “commodities” or items to be assembled. The real matter is rather, which “meanings” are generated through transfer. In this way, beyond any usual flat version, we may perceive that any “constitutional relocation” exhibits a reappraisal of the whole world we live in.’
– Pier Giueseppe Monateri, University of Turin, Italy
Contributors
Contributors: H. Alviar García, U. Baxi, P. Dann, J. Eckert, G. Frankenberg, R. Gargarella, F. Hanschmann, J. Hendry, S. Kadelbach, N. Markard, R. Michaels, H.K. Prempeh, R. Rubio Marín, M. Seckelmann, T. Tohidipur
Contents
Contents:
Preface
Constitutions as Commodities: Notes on a Theory of Transfer
Günter Frankenberg
PART I: TRANSPLANT, TRANSFER, MIGRATION, ETC. – ONLY WORDS? PROBLEMS OF THEORY AND METHOD
1. Comparative Constitutional Studies and the Discourse on Legal Transfer
Timo Tohidipur
2. Clotted History and Chemical Reactions – On the Possibility of Constitutional Transfer
Margrit Seckelmann
3. ‘One Size Can Fit All’ – Some Heretical Thoughts on the Mass Production of Legal Transplants
Ralf Michaels
PART II: ORDERING GENDER – COMPARING THE CASTING AND RECASTING OF WOMEN AND GENDER RELATIONS IN CONSTITUTIONAL CONTEXTS
4. Gender Structures and Constitutional Law
Helena Alviar García
5. Private but Equal? Why the Right to Privacy Will Not Bring Full Equality for Same-sex Couples
Nora Markard
6. Legal Transfer of Women and Fetuses: A Trip from German to Portuguese Abortion Constitutionalism
Ruth Rubio Marín
PART III: ORDERING PLURALISM – ALTERNATIVE NORMATIVE ORDERS CHALLENGING THE STATE–CENTEREDNESS OF CONSTITUTIONALISM
7. Legal Pluralism and Normative Transfer
Jennifer Hendry
8. Who is Afraid of Legal Transfers?
Julia Eckert
PART IV: ORDERING THE POSTCOLONY – CONSTITUTIONAL BREAKS, CONTINUITIES, AND HYBRIDS
9. ‘Ordering’ Constitutional Transfers: A View from India
Upendra Baxi
10. Constitutional Autochthony and the Invention and Survival of ‘Absolute Presidentialism’ in Postcolonial Africa
H. Kwasi Prempeh
PART V: ORDERING HEGEMONY – CONSTITUTIONAL MOMENTS IN OCCUPIED TERRITORIES AND COLONIES
11. Constitution-making in Occupied Countries
Stefan Kadelbach
12. International Influence on Post-Conflict Constitution-making
Philipp Dann
13. German Citizenship and its Colonial Heritage
Felix Hanschmann
PART VI: ORDERING EUROPE – EUROPE ORDERING. CONSTITUTIONAL TRANSFERS TO LATIN AMERICA IN THE NINETEENTH AND TWENTIETH CENTURIES
14. Constitutional Transfers and Experiments in the Nineteenth Century
Günter Frankenberg
15. Leon Duguit’s Influence in Columbia: The Lost Opportunity of a Potentially Progressive Reform
Helena Alviar García
16. Constitutional Grafts and Social Rights in Latin America
Roberto Gargarella
Index
Preface
Constitutions as Commodities: Notes on a Theory of Transfer
Günter Frankenberg
PART I: TRANSPLANT, TRANSFER, MIGRATION, ETC. – ONLY WORDS? PROBLEMS OF THEORY AND METHOD
1. Comparative Constitutional Studies and the Discourse on Legal Transfer
Timo Tohidipur
2. Clotted History and Chemical Reactions – On the Possibility of Constitutional Transfer
Margrit Seckelmann
3. ‘One Size Can Fit All’ – Some Heretical Thoughts on the Mass Production of Legal Transplants
Ralf Michaels
PART II: ORDERING GENDER – COMPARING THE CASTING AND RECASTING OF WOMEN AND GENDER RELATIONS IN CONSTITUTIONAL CONTEXTS
4. Gender Structures and Constitutional Law
Helena Alviar García
5. Private but Equal? Why the Right to Privacy Will Not Bring Full Equality for Same-sex Couples
Nora Markard
6. Legal Transfer of Women and Fetuses: A Trip from German to Portuguese Abortion Constitutionalism
Ruth Rubio Marín
PART III: ORDERING PLURALISM – ALTERNATIVE NORMATIVE ORDERS CHALLENGING THE STATE–CENTEREDNESS OF CONSTITUTIONALISM
7. Legal Pluralism and Normative Transfer
Jennifer Hendry
8. Who is Afraid of Legal Transfers?
Julia Eckert
PART IV: ORDERING THE POSTCOLONY – CONSTITUTIONAL BREAKS, CONTINUITIES, AND HYBRIDS
9. ‘Ordering’ Constitutional Transfers: A View from India
Upendra Baxi
10. Constitutional Autochthony and the Invention and Survival of ‘Absolute Presidentialism’ in Postcolonial Africa
H. Kwasi Prempeh
PART V: ORDERING HEGEMONY – CONSTITUTIONAL MOMENTS IN OCCUPIED TERRITORIES AND COLONIES
11. Constitution-making in Occupied Countries
Stefan Kadelbach
12. International Influence on Post-Conflict Constitution-making
Philipp Dann
13. German Citizenship and its Colonial Heritage
Felix Hanschmann
PART VI: ORDERING EUROPE – EUROPE ORDERING. CONSTITUTIONAL TRANSFERS TO LATIN AMERICA IN THE NINETEENTH AND TWENTIETH CENTURIES
14. Constitutional Transfers and Experiments in the Nineteenth Century
Günter Frankenberg
15. Leon Duguit’s Influence in Columbia: The Lost Opportunity of a Potentially Progressive Reform
Helena Alviar García
16. Constitutional Grafts and Social Rights in Latin America
Roberto Gargarella
Index
