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Author: Sujit Choudhry Publisher: Cambridge University Press ISBN: 1139460773 Category : Law Languages : en Pages : 431
Book Description
The migration of constitutional ideas across jurisdictions is one of the central features of contemporary constitutional practice. The increasing use of comparative jurisprudence in interpreting constitutions is one example of this. In this 2007 book, leading figures in the study of comparative constitutionalism and comparative constitutional politics from North America, Europe and Australia discuss the dynamic processes whereby constitutional systems influence each other. They explore basic methodological questions which have thus far received little attention, and examine the complex relationship between national and supranational constitutionalism - an issue of considerable contemporary interest in Europe. The migration of constitutional ideas is discussed from a variety of methodological perspectives - comparative law, comparative politics, and cultural studies of law - and contributors draw on case-studies from a wide variety of jurisdictions: Australia, Hungary, India, South Africa, the United Kingdom, the United States, and Canada.
Author: Sujit Choudhry Publisher: Cambridge University Press ISBN: 1139460773 Category : Law Languages : en Pages : 431
Book Description
The migration of constitutional ideas across jurisdictions is one of the central features of contemporary constitutional practice. The increasing use of comparative jurisprudence in interpreting constitutions is one example of this. In this 2007 book, leading figures in the study of comparative constitutionalism and comparative constitutional politics from North America, Europe and Australia discuss the dynamic processes whereby constitutional systems influence each other. They explore basic methodological questions which have thus far received little attention, and examine the complex relationship between national and supranational constitutionalism - an issue of considerable contemporary interest in Europe. The migration of constitutional ideas is discussed from a variety of methodological perspectives - comparative law, comparative politics, and cultural studies of law - and contributors draw on case-studies from a wide variety of jurisdictions: Australia, Hungary, India, South Africa, the United Kingdom, the United States, and Canada.
Author: Yaniv Roznai Publisher: Oxford University Press ISBN: 0198768796 Category : Law Languages : en Pages : 369
Book Description
Can constitutional amendments be unconstitutional? Using theoretical and comparative approaches, Roznai establishes the nature and scope of constitutional amendment powers by focusing on substantive limitations, looking at their prevalence in practice and the conceptual coherence of the very idea of limitations to constitutional amendment powers.
Author: Sujit Choudhry Publisher: ISBN: Category : Languages : en Pages : 0
Book Description
The debate over the use of foreign law on the U.S. Supreme Court is a part of a much larger constitutional conversation occurring in many jurisdictions regarding the migration of constitutional ideas. The migration of constitutional ideas across legal systems is rapidly emerging as one of the central features of contemporary constitutional practice. The migration of constitutional ideas has been identified to a limited extent at a descriptive level. But many basic conceptual issues have received almost no attention in the large and growing critical literature on comparative constitutional law. For example, the existing literature has not addressed systematically the methodology of constitutional migration, nor the normative underpinnings of this enterprise. The Migration of Constitutional Ideas tackles this phenomenon from a diverse range of methodological perspectives. In this introductory essay, I describe and defend a theory of the use of comparative constitutional materials in constitutional interpretation which I term dialogical interpretation. The goal is to use comparative materials as an interpretive foil, to expose the factual and normative assumptions underlying the court's own constitutional order. First, comparative materials are engaged to identify the assumptions embedded in positive legal materials. But in the process of articulating the assumptions underlying foreign jurisprudence, a court will inevitably uncover its own. The next move is to engage in a process of justification. If the assumptions are different, the question becomes why they are different. Comparative engagement highlights the contingency of legal and constitutional order, and opens for discussion and contestation those characteristics which had remained invisible to whether those assumptions ought to be shared. Finally, the court is faced with a set of interpretive choices. A court may be able to justify the similarity with, or the difference between, the assumptions underlying its own constitutional order and a foreign one. Comparative engagement, then, leads to a heightened sense of legal awareness through interpretive clarification and confrontation. But the identification and attempted justification of constitutional assumptions through comparison may lead a court to challenge and reject those assumptions and search for new ones. In cases of constitutional similarity, a court may determine a difference to be unfounded, and may rely on comparative jurisprudence as the engine of legal change.
Author: Günter Frankenberg Publisher: Edward Elgar Publishing ISBN: 1781952116 Category : Law Languages : en Pages : 383
Book Description
ÔA fascinating collection of essays commenting on and developing FrankenbergÕs 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.Õ Ð David Nelken, University of Cardiff, UK ÔFrankenbergÕs work gives a new insight of what comparative law can be in the context of globalization, representing an outstanding achievement. His theory of ÒtransferÓ supersedes the metaphors of mainstream scholarship, displaying that constitutions are not mere ÒcommoditiesÓ or items to be assembled. The real matter is rather, which ÒmeaningsÓ are generated through transfer. In this way, beyond any usual flat version, we may perceive that any Òconstitutional relocationÓ exhibits a reappraisal of the whole world we live in.Õ Ð 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.
Author: Günter Frankenberg Publisher: ISBN: 9781782548973 Category : Constitutional law Languages : en Pages : 0
Book Description
"Every constitution has an interesting story to tell, and for this book [the author] has selected...examples that encourage readers to practise realism, demonstrate critical spirit and examine the dark side of framers' reports and normative theories. This book deals with textbook hegemons, made in Philadelphia, Tokyo, Paris and, more importantly, with other constitutions from the global south, often classified as also-ran. Constitutions reflect conflicts and experiences, political visions and anxieties, ideals and ideologies, and [the author's] interdisciplinary approach serves as an...introduction to a new transnational conversation in comparative constitutional law."--
Author: George Anderson Publisher: Oxford University Press ISBN: 0192573616 Category : Law Languages : en Pages : 556
Book Description
This collection of essays surveys the full range of challenges that territorial conflicts pose for constitution-making processes and constitutional design. It provides seventeen in-depth case studies of countries going through periods of intense constitutional engagement in a variety of contexts: small distinct territories, bi-communal countries, highly diverse countries with many politically salient regions, and countries where territorial politics is important but secondary to other bases for political mobilization. Specific examples are drawn from Iraq, Kenya, Cyprus, Nigeria, South Africa, Sri Lanka, the UK (Scotland), Ukraine, Bolivia, India, Spain, Yemen, Nepal, Ethiopia, Indonesia (Aceh), the Philippines (Mindanao), and Bosnia-Herzegovina. While the volume draws significant normative conclusions, it is based on a realist view of the complexity of territorial and other political cleavages (the country's "political geometry"), and the power configurations that lead into periods of constitutional engagement. Thematic chapters on constitution-making processes and constitutional design draw original conclusions from the comparative analysis of the case studies and relate these to the existing literature, both in political science and comparative constitutional law. This volume is essential reading for scholars of federalism, consociational power-sharing arrangements, asymmetrical devolution, and devolution more generally. The combination of in-depth case studies and broad thematic analysis allows for analytical and normative conclusions that will be of major relevance to practitioners and advisors engaged in constitutional design.
Author: Sujit Choudhry Publisher: OUP Oxford ISBN: 0191021512 Category : Law Languages : en Pages : 496
Book Description
How should constitutional design respond to the opportunities and challenges raised by ethnic, linguistic, religious, and cultural differences, and do so in ways that promote democracy, social justice, peace and stability? This is one of the most difficult questions facing societies in the world today. There are two schools of thought on how to answer this question. Under the heading of accommodation, some have argued for the need to recognize, institutionalize and empower differences. There are a range of constitutional instruments available to achieve this goal, such as multinational federalism and administrative decentralization, legal pluralism (e.g. religious personal law), other forms of non-territorial minority rights (e.g. minority language and religious education rights), consociationalism, affirmative action, legislative quotas, etc. But others have countered that such practices may entrench, perpetuate and exacerbate the very divisions they are designed to manage. They propose a range of alternative strategies that fall under the rubric of integration that will blur, transcend and cross-cut differences. Such strategies include bills of rights enshrining universal human rights enforced by judicial review, policies of disestablishment (religious and ethnocultural), federalism and electoral systems designed specifically to include members of different groups within the same political unit and to disperse members of the same group across different units, are some examples. In this volume, leading scholars of constitutional law, comparative politics and political theory address the debate at a conceptual level, as well as through numerous country case-studies, through an interdisciplinary lens, but with a legal and institutional focus.
Author: Michael W. Dowdle Publisher: Cambridge University Press ISBN: 1316943089 Category : Law Languages : en Pages : 375
Book Description
Constitutionalism beyond Liberalism bridges the gap between comparative constitutional law and constitutional theory. The volume uses the constitutional experience of countries in the global South - China, India, South Africa, Pakistan, Indonesia, and Malaysia - to transcend the liberal conceptions of constitutionalism that currently dominate contemporary comparative constitutional discourse. The alternative conceptions examined include political constitutionalism, societal constitutionalism, state-based (Rousseau-ian) conceptions of constitutionalism, and geopolitical conceptions of constitutionalism. Through these examinations, the volume seeks to expand our appreciation of the human possibilities of constitutionalism, exploring constitutionalism not merely as a restriction on the powers of government, but also as a creating collective political and social possibilities in diverse geographical and historical settings.
Author: Sergio Carrera Publisher: Edward Elgar Publishing ISBN: 1788972481 Category : Asylum, Right of Languages : en Pages : 337
Book Description
This discerning book examines the external dimension EU migration and asylum polices in times of crisis. It thoroughly assesses patterns of co-operation in EU migration management with a focus on co-operation with the global south. A key resource for academics and students focussing on EU Law and migration more specifically, this book will also appeal to policy-makers, legal practitioners and international organisation representatives alike.
Author: Sujit Choudhry
Author: Sujit Choudhry
Author: Neil Walker
Author: Yaniv Roznai
Author: Sujit Choudhry
Author: Günter Frankenberg
Author: Günter Frankenberg
Author: George Anderson
Author: Sujit Choudhry
Author: Michael W. Dowdle
Author: Sergio Carrera