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Author: Anat Scolnicov Publisher: Hart Publishing ISBN: 1509960023 Category : Law Languages : en Pages : 0
Book Description
This book explores the global phenomenon of migration, transplantation, and borrowing of constitutional ideas. It combines conceptual and normative approaches, to dissect a phenomenon which has been both praised and maligned in current political and academic discourse. The contributors consider constitutional transplantation as a specific case of migration of ideas, and place it within that broader intellectual framework of movement of knowledge. They analyse, from historical, conceptual, and normative angles, the transplantation of constitutions and constitutional ideas from one state to another, and the role played by existing cultures and histories in the reception of constitutional provisions and ideas. The book takes a broad view of the term 'constitutional'. The results of the movement of constitutional ideas can be found outside, as well as within, the law, and the implications of such movement go beyond it. The authors are drawn from the fields of comparative constitutional law, medieval history, political philosophy, private law, and administration of justice. It reflects a view that the study of non-hegemonic systems, as well as hegemonic systems, is important in understanding transplantation of constitutional ideas, both as sources of transplants and as their receivers, and includes discussions of constitutions in Latin America, Asia, Europe, and North America.
Author: Anat Scolnicov Publisher: Hart Publishing ISBN: 1509960023 Category : Law Languages : en Pages : 0
Book Description
This book explores the global phenomenon of migration, transplantation, and borrowing of constitutional ideas. It combines conceptual and normative approaches, to dissect a phenomenon which has been both praised and maligned in current political and academic discourse. The contributors consider constitutional transplantation as a specific case of migration of ideas, and place it within that broader intellectual framework of movement of knowledge. They analyse, from historical, conceptual, and normative angles, the transplantation of constitutions and constitutional ideas from one state to another, and the role played by existing cultures and histories in the reception of constitutional provisions and ideas. The book takes a broad view of the term 'constitutional'. The results of the movement of constitutional ideas can be found outside, as well as within, the law, and the implications of such movement go beyond it. The authors are drawn from the fields of comparative constitutional law, medieval history, political philosophy, private law, and administration of justice. It reflects a view that the study of non-hegemonic systems, as well as hegemonic systems, is important in understanding transplantation of constitutional ideas, both as sources of transplants and as their receivers, and includes discussions of constitutions in Latin America, Asia, Europe, and North America.
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: Alan Watson Publisher: University of Georgia Press ISBN: 082031532X Category : Law Languages : en Pages : 141
Book Description
In Legal Transplants, one of the world's foremost authorities on legal history and comparative law puts forth a clear and concise statement of his controversial thesis on the way that law has developed throughout history. When it was first published in 1974, Legal Transplants sparked both praise and outrage. Alan Watson's argument challenges the long-prevailing notion that a close connection exists between the law and the society in which it operates. His main thesis is that a society's laws do not usually develop as a logical outgrowth of its own experience. Instead, he contends, the laws of one society are primarily borrowed from other societies; therefore, most law operates in a society very different from the one for which it was originally created. Utilizing a wealth of primary sources, Watson illustrates his argument with examples ranging from the ancient Near East, ancient Rome, early modern Europe, Puritan New England, and modern New Zealand. The resulting picture of the law's surprising longevity and acceptance in foreign conditions carries important implications for legal historians and sociologists. The law cannot be used as a tool to understand society, Watson believes, without a careful consideration of legal transplants. For this edition, Watson has written a new afterword in which he places his original study in the context of more recent scholarship and offers some new reflections on legal borrowings, law, and society.
Author: Michel Rosenfeld Publisher: OUP Oxford ISBN: 0191640166 Category : Law Languages : en Pages : 1416
Book Description
The field of comparative constitutional law has grown immensely over the past couple of decades. Once a minor and obscure adjunct to the field of domestic constitutional law, comparative constitutional law has now moved front and centre. Driven by the global spread of democratic government and the expansion of international human rights law, the prominence and visibility of the field, among judges, politicians, and scholars has grown exponentially. Even in the United States, where domestic constitutional exclusivism has traditionally held a firm grip, use of comparative constitutional materials has become the subject of a lively and much publicized controversy among various justices of the U.S. Supreme Court. The trend towards harmonization and international borrowing has been controversial. Whereas it seems fair to assume that there ought to be great convergence among industrialized democracies over the uses and functions of commercial contracts, that seems far from the case in constitutional law. Can a parliamentary democracy be compared to a presidential one? A federal republic to a unitary one? Moreover, what about differences in ideology or national identity? Can constitutional rights deployed in a libertarian context be profitably compared to those at work in a social welfare context? Is it perilous to compare minority rights in a multi-ethnic state to those in its ethnically homogeneous counterparts? These controversies form the background to the field of comparative constitutional law, challenging not only legal scholars, but also those in other fields, such as philosophy and political theory. Providing the first single-volume, comprehensive reference resource, the 'Oxford Handbook of Comparative Constitutional Law' will be an essential road map to the field for all those working within it, or encountering it for the first time. Leading experts in the field examine the history and methodology of the discipline, the central concepts of constitutional law, constitutional processes, and institutions - from legislative reform to judicial interpretation, rights, and emerging trends.
Author: András Jakab Publisher: Cambridge University Press ISBN: 1108138616 Category : Law Languages : en Pages : 867
Book Description
To what extent is the language of judicial opinions responsive to the political and social context in which constitutional courts operate? Courts are reason-giving institutions, with argumentation playing a central role in constitutional adjudication. However, a cursory look at just a handful of constitutional systems suggests important differences in the practices of constitutional judges, whether in matters of form, style, or language. Focusing on independently-verified leading cases globally, a combination of qualitative and quantitative analysis offers the most comprehensive and systematic account of constitutional reasoning to date. This analysis is supported by the examination of eighteen legal systems around the world including the European Court of Human Rights and the European Court of Justice. Universally common aspects of constitutional reasoning are identified in this book, and contributors also examine whether common law countries differ to civil law countries in this respect.
Author: Louis J. Palmer, Jr. Publisher: McFarland ISBN: 1476616361 Category : Social Science Languages : en Pages : 195
Book Description
In a revised and updated edition, this book continues the debate on whether transplantable organs of executed capital felons should be used to save lives. It provides the reader with relevant data and information necessary for making an informed and intelligent judgment of the matter. Every conceivable constitutional argument on behalf of capital felons and their families is discussed, along with all of the societal pros and cons. Based on precedents by the United States Supreme Court, the author argues that the constitution supports the removal of transplantable organs from executed capital felons.
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: Publisher: ISBN: 1605298409 Category : Languages : en Pages : 290
Author: Vito Breda Publisher: Cambridge University Press ISBN: 1108577172 Category : Law Languages : en Pages :
Book Description
This volume provides a unique overview of methodologies that are conducive to a successful legal transplant in East Asia and Oceania. Each chapter is drafted by a scholar who holds direct professional experience on the legal transplant considered and has a distinctive insight into the pragmatic difficulties related to grafting an alien institution into a legal tradition. The range of transplants includes the implementation of contractual obligations, the regulation of commercial investments and the protection of the environment. The majority of recent legal reforms in these geographical areas have aimed at improving national economic performance and fostering trade and have been directly inspired by European and North American institutional experiences. There is also, however, a tendency to couple economic reforms, aimed at attracting foreign investment, with constitutional reforms that improve the protection of individual rights, the environment and the rule of law.
Author: Anat Scolnicov
Author: Anat Scolnicov
Author: Morton J. Horwitz
Author: Günter Frankenberg
Author: Alan Watson
Author: Michel Rosenfeld
Author: András Jakab
Author: Louis J. Palmer, Jr.
Author: Sujit Choudhry
Author: 
Author: Vito Breda