Debating Legal Pluralism and Constitutionalism: New Trajectories for Legal Theory in the Global Age (Ius Comparatum - Global Studies in Comparative Law, 41)

The book gathers the general report and the national reports presented at the XXth General Congress of the IACL, in Fukuoka (Japan), on the topic “Debating legal pluralism and constitutionalism: new trajectories for legal theory in the global age”. Discussing the major contemporary changes occurring in and problems faced by domestic legal systems in the global age, the book describes how and to what extent these trends affect domestic legal orderings and practices, and challenges the traditional theoretical lenses that are offered to tackle them: constitutionalism and pluralism. Combining comparative law and comparative legal doctrine, and drawing on the national contributions, the general report concludes that most of the classic tools offered by legal doctrine are not appropriate to address most of today’s practical and theoretical global legal challenges, and as such, the book also offers new intellectual tools for the global age. Contents Debating Legal Pluralism and Constitutionalism: New Trajectories for Legal Theory in the Global Age 1 Introduction: General Perspective 2 The Statics of the Relations Among Legal Spheres in Positive Law: Multifaceted Pluralism 2.1 Outward Pluralism: Perspectives on the Relationship Between Domestic and International, Supranational, and Transnational L... 2.2 Inward Pluralism: Perspectives on the Internal Consistency of Domestic Legal Systems 3 The Dynamics of the Relations Among Legal Spheres in Positive Law 4 The Renewal of Legal Reasoning 5 The Renewal of Legal Scholarship 6 The Ideological Dimensions of Legal Rationality 6.1 Questioning Pluralist Dialogism 6.2 Questioning Constitutionalism and Pluralism 6.3 Questioning This General Report ́s Implicit Biases References A Particular Dialogue Between Systems. The Argentinian Case 1 An Overview of Argentinean System 1.1 The Relationship Among General Treaties and the Law 1.2 The Constitutional Hierarchy of Human Rights Conventions and Declarations 1.3 Integration into Supranational Organizations and the Hierarchy of the Resulting Norms 2 Argentina Among the Interamerican Human Rights Protection System 3 Tensions in Between Systems: The Fontevecchia Case 4 Some Other Reflections of the Openness of the Normative System to Human Rights Protective Laws: The Renewal of Legal Reasoni... 5 The Impact of the ``Neoconstitutionalism ́ ́ in the Recent Reform of the Civil Code and the Jurisprudence 6 The Ideological Dimension of Legal Rationality and Some Conclusions References Reconciling Legal Pluralism and Constitutionalism: New Trajectories for Legal Theory in the Age of Globalisation in Botswana 1 Introduction 2 The Balance Among Legal Spheres in Positive Law 3 The Dynamics of the Relations Among Legal Spheres in Positive Law 4 The Renewal of Legal Reasoning 5 The Renewal of Jurisprudence 6 The Ideological Dimension of Legal Rationality 7 Concluding Remarks References Brazil and Its Many Realities: Courts and State-Centrism; Administrative Agencies and International Cooperation 1 Introduction: Brazil and Legal Pluralism 2 The Balance Among Legal Spheres in Positive Law 3 The Dynamics of the Relations Among Legal Spheres in Positive Law 4 The Renewal of Legal Reasoning, Jurisprudence and Legal Practice 5 The Ideological Dimension of Legal Rationality 6 Conclusion References Legal Pluralism and Constitutionalism in the Cypriot Example 1 Introduction 2 Theoretical Rationale: Concepts and Content, Accounts and Critique 2.1 The Three Facets of the Constitutional Debate 2.2 Adopted Theoretical Perspective 2.3 Global Constitutionalism 2.4 Constitutional Pluralism 3 Application of the Theoretical Views in the Cypriot Context 3.1 Cypriot Constitutional Context: A Snapshot 3.2 The Balance Among Legal Spheres in Positive Law 3.2.1 Hierarchy of the Rules of Law 3.2.2 Cyprus: A Monist or a Dualist State? 3.2.3 The Special Position of International Human Rights Law and EU Law in the Cypriot Legal Order 3.2.4 The Establishment of Norm Combination in Specific Areas of Law Contract Law Collective Bargaining Regulation of Native Communities and Churches 3.3 The Dynamics of the Relations Among Legal Spheres in Positive Law 3.3.1 A Mixity of Systems and External Influences 3.3.2 Vertical and Horizontal Trans-Constitutional (Judicial) Dialogues Vertical Dialogue with the CJEU Horizontal Dialogue with the ECHR/ECtHR and Foreign Jurisdictions The Adaptation of the Constitution to Globalisation and Supranational Obligations The Power of Judicial Review of the Compliance with International and Transnational Law Cypriot Case Law Breakthrough: Exceeding the Strict Letter of the Constitution 3.4 The Renewal of Legal Reasoning and Jurisprudence 3.4.1 The Influence of Globalization and Supranational Entities in Legal Reasoning 3.4.2 The Influence of Globalization and Supranational Entities in Jurisprudence 3.5 The Ideological Dimension of Legal Rationality 4 Conclusion References ``Friendliness ́ ́ Towards Others: How the German Constitution Deals with Legal Pluralism 1 Introduction 2 Foundations 2.1 Law Within the State 2.1.1 Federal State Law 2.1.2 Private Law 2.1.3 Social Norms 2.2 Law Beyond the State 2.2.1 International Law 2.2.2 European Union Law 2.3 Law Across the State 2.3.1 Foreign Law 2.3.2 Transnational Law 3 Transformations 3.1 Adjudication 3.1.1 Federal State Law 3.1.2 Social Norms 3.1.3 International Law 3.1.4 European Union Law 3.1.5 Foreign Law 3.1.6 Transnational Law 3.2 Legislation 3.2.1 Social Norms 3.2.2 European Union Law 3.2.3 Transnational Law 3.3 Legal Scholarship 3.3.1 Theory 3.3.2 Ideology 3.3.3 Doctrine 3.3.4 Education 4 Conclusion References Between Constitutionalism and Legal Pluralism: Perspectives from Greece 1 Introduction 2 The Greek Constitution and European Law 3 The Limits of European Constitutionalization. The Experience of the Greek Crisis 4 The Haircut of Greek Bonds: Legal Pluralism at Work 5 The Limits of European Pluralism 6 From the Dilemma Between Constitutionalism and Internationalism to a Synthesis 7 Conclusion References Legal Pluralism in Centralist Singapore 1 Introduction: Background 2 International, Regional, and Foreign Law 3 The Dynamics of Relations Among Legal Spheres in Positive Law 4 The Renewal of Legal Reasoning and Jurisprudence 4.1 Proportionality 4.2 Basic Structure Doctrine 5 Conclusion References Constitutionalism and Customary Laws in Solomon Islands 1 Introduction 2 Background to Solomon Islands and Its System of Law and Government 3 The Balance of Relations in Different Spheres of Positive Law 3.1 General 3.2 Judicial Review 3.3 Freedom of Contract 3.4 The Hierarchy of Norms 4 The Dynamics of the Relationship Between Different Aspects of Positive Law 4.1 The Place of International Law in Solomon Islands 4.2 Consistency in the Approach of Legal Actors 4.2.1 The Executive 4.2.2 The Legislature 4.3 The Courts 4.4 Resolution of Conflicts and Transconstitutional Dialogue 5 Failure of the Approach to Constitutionalism and Conflicting Norms to Evolve 6 Stagnation of Legal Reasoning and Jurisprudence 7 Conclusion References Accommodating Legal Pluralism and ``Pluralizing ́ ́ the Constitution: The Example of the United Kingdom 1 Introduction 2 The Dynamic Relations Among Legal Spheres in Positive Law: Accommodating Pluralism 2.1 The ``Default ́ ́: The Position of International Law in the Domestic Legal Order 2.2 Complicating the Picture: The Special Status of EU Law 2.3 Complication Squared: Brexit 2.4 Other Forms of Pluralism: Transconstitutional Dialogue 3 The Renewal of Legal Reasoning and the Constitution 3.1 Pluralizing the Constitution I: The Revival of Common Law Constitutionalism 3.2 Pluralizing the Constitution II: Constitutional Statutes 3.3 Pluralizing the Constitution III: The UK ́s Territorial Constitution 4 Legal Pluralism: Consensus or Conflict? References Reconciling Legal Pluralism and Constitutionalism: New Trajectories for Legal Theory in the Global Age-Questionnaire 1 General Perspective 2 The Role of Special Rapporteurs 3 Questionnaire 3.1 The Balance Among Legal Spheres in Positive Law 3.2 The Dynamics of the Relations Among Legal Spheres in Positive Law 3.3 The Renewal of Legal Reasoning 3.4 The Renewal of Jurisprudence 3.5 The Ideological Dimension of Legal Rationality References Correction to: Accommodating Legal Pluralism and ``Pluralizing ́ ́ the Constitution: The Example of the United Kingdom Correction to: Chapter 10 in G. Tusseau (ed.), Debating Legal Pluralism and Constitutionalism, Ius Comparatum - Global Studies...