Description
Book SynopsisConstitutional 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.
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
Trade Review'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
'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
Table of ContentsContents: 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
