Order From Transfer Comparative Constitutional Design and Legal Culture

Author: Günter Frankenberg
Publisher: Edward Elgar Publishing
ISBN: 9781781952108
Published In: July 2013
Format: Hardback , 368 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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‘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

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.

Preface

Introduction – 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. Introduction: 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 WOMEN/GENDER – COMPARING THE CASTING AND RECASTING OF THE OTHER IN CONSTITUTIONAL CONTEXTS
4. Introduction: 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 Couple
Nora Markard

6. Legal Transfers 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. Introduction: 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 CENTURY
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