Order from Transfer: Comparative Constitutional Design and Legal Culture (Studies in Comparative Law and Legal Culture series)

A fascinating collection of essays commenting on and developing Frankenberg's 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. David Nelken, University of Cardiff, UK 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. Contributors vii Preface xii Constitutions as commodities: notes on a theory of transfer 1 Günter Frankenberg PART I TRANSPLANT, TRANSFER, MIGRATION, ETC. – ONLY WORDS? PROBLEMS OFTHEORYANDMETHOD 1 Comparative constitutional studies and the discourse on legal transfer 29 Timo Tohidipur 2 Clotted history and chemical reactions – on the possibility of constitutional transfer 36 Margrit Seckelmann 3 “One size can fit all” – some heretical thoughts on the mass production of legal transplants 56 Ralf Michaels PART II ORDERING GENDER –COMPARINGTHE CASTING ANDRECASTING OFWOMENANDGENDER RELATIONS IN CONSTITUTIONAL CONTEXTS 4 Gender structures and constitutional law 81 Helena Alviar García 5 Private but equal?Why the right to privacy will not bring full equality for same-sex couples 87 Nora Markard 6 Legal transfer ofwomen and fetuses: a trip from German to Portuguese abortion constitutionalism 120 Ruth Rubio Marín PART III ORDERING PLURALISM –ALTERNATIVENORMATIVE ORDERS CHALLENGINGTHE STATE-CENTEREDNESS OF CONSTITUTIONALISM 7 Legal pluralism and normative transfer 153 Jennifer Hendry 8 Who is afraid of legal transfers? 171 Julia Eckert PART IV ORDERINGTHE POSTCOLONY – CONSTITUTIONAL BREAKS, CONTINUITIES,ANDHYBRIDS 9 “Ordering” constitutional transfers: a viewfrom India 189 Upendra Baxi 10 Constitutional autochthony and the invention and survival of “absolute presidentialism” in postcolonial Africa 209 HKwasi Prempeh PARTV ORDERINGHEGEMONY– CONSTITUTIONAL MOMENTSIN OCCUPIED TERRITORIESAND COLONIES 11 Constitution-making in occupied countries 237 Stefan Kadelbach 12 International influence on post-conflict constitution-making 243 Philipp Dann 13 German citizenship and its colonial heritage 261 Felix Hanschmann PARTVI ORDERING EUROPE – EUROPE ORDERING. CONSTITUTIONALTRANSFERSTOLATINAMERICA INTHE NINETEENTHANDTWENTIETH CENTURIES 14 Constitutional transfers and experiments in the nineteenth century 279 Günter Frankenberg 15 Leon Duguit’s influence in Colombia: the lost opportunity of a potentially progressive reform 306 Helena Alviar García 16 Constitutional grafts and social rights in LatinAmerica 322 Roberto Gargarella Index 349 Constitutions as commodities : notes on a theory of transfer -- Günter Frankenberg Comparative constitutional studies and the discourse on legal transfer -- Timo Tohidipur Clotted history and chemical reactions : on the possibility of constitutional transfer -- Margrit Seckelmann "One size can fit all" : some heretical thoughts on the mass production of legal transplants -- Ralf Michaels Gender structures and constitutional law -- Helena Alviar García Private but equal? : Why the right to privacy will not bring full equality for same-sex couples -- Nora Markard Legal transfer of women and fetuses : a trip from German to Portuguese abortion constitutionalism -- Ruth Rubio Marín Legal pluralism and normative transfer -- Jennifer Hendry Who is afraid of legal transfers? -- Julia Eckert "Ordering" constitutional transfers : a view from India -- Upendra Baxi Constitutional autochthony and the invention and survival of "absolute presidentialism" in postcolonial Africa -- H. Kwasi Prempeh Constitution-making in occupied countries -- Stefan Kadelbach International influence on post-conflict constitution-making -- Philipp Dann German citizenship and its colonial heritage -- Felix Hanschmann Constitutional transfers and experiments in the nineteenth century -- Günter Frankenberg Leon Duguit's influence in Colombia : the lost opportunity of a potentially progressive reform -- Helena Alviar García Constitutional grafts and social rights in Latin America -- Roberto Gargarella.