Kjell Å Modéer
This chapter is about the relations between the national legal system and the ‘other’—especially from the creation of the modern nation state in the early nineteenth century and up to current times. Comparative law in the twentieth century was dominated by the concept of ‘valid law’, functionalism, legal positivism and legal realism. The parameters of time and space within law were minimalized. The German law emigrés from Nazi Germany to England and the United States played a special role for the relation to comparative law, and several of these scholars played a great role for the post-war development of comparative law. Critical theories and post-colonialism have developed new legal discourses on culture and identity, and have increased interest not only in history but also in differences between legal cultures—and thus an increasing interest in comparative legal history.
This article begins with a discussion of the constitutionalization of affirmative action and its side effects. It examines the legal underpinnings of affirmative action in two relatively well-endowed developing countries and former British colonies — Malaysia and South Africa — where the disadvantaged groups that receive the benefits of affirmative action are numerical majorities from the start. It also considers the case of India, where the disadvantaged groups targeted for affirmative action initially are numerical minorities. The discussion then turns to the non-constitutionalization of affirmative action and its side effects. In countries where affirmative action has not been constitutionalized and where the beneficiaries (women excepted) are minority groups, the legal validity of a program of this kind will depend upon whether it meets a set of formal requirements. The most important of those is arguably that the outcome of the decisional process by which scarce goods are being allocated should not be exclusively determined by group membership. The soft, gender-focused, ‘discrimination-blocking’ EU affirmative action model and the (exceptional) US affirmative action regime are examined.
The paradigmatic public institution associated with the application of Islamic law from the rise of Islam until the end of the nineteenth century has been the qadi. This essay examines the scholarship on this institution, organizing studies into doctrinal works and empirical works. Doctrinal studies of the qadi are based almost entirely on literary sources, most commonly legal texts. Historical sources have also been important, especially for the pre-Ottoman period. Empirical studies of the qadi, by contrast, base themselves almost entirely on surviving court records. Thus, most empirical studies are limited to courts of the Ottoman Empire which kept systematic records of court decisions in contrast to the courts of previous Muslim states, which did not. In the modern period, there has been a distinct rise in an anthropological approach to the qadi, with numerous studies having been published based on direct observation of the behavior of Muslim judges.
Ulrich K. Preuß
Associative rights cover those constitutional guarantees which deal with the joint actions of individuals. The promise of associative rights to individuals is the most effective means of their empowerment in the polity. At the same time, this guarantee gives rise to a decentralized power structure in society which has a major bearing on the modes of how collective decisions are made in the polity. Three constitutional rights are pertinent in this respect, ranging in the order of increasing empowerment and, consequently, structural effects on the polity: the right to petition for the redress of grievances, the right to the freedom of assembly, and the right to the freedom of association. This article presents a comparative overview of associative rights and considers only those constitutions which effectively shape the character of the polity, where, in other words, collective actions of citizens are an inherent element of an entrenched sphere of socio-political autonomy.
This chapter examines the legal status and consequences of the asymmetrically federal provisions included in the Indian Constitution. In particular, it considers constitutional amendments relating to autonomy arrangements in India’s North-eastern region, along with the ‘special status’ of Jammu and Kashmir. After providing an overview of the significance of asymmetric federalism in India, the article discusses the administration of tribal areas under the Fifth and Sixth Schedules. It also explores provisions aimed at mitigating intra-State inequalities in the States of Gujarat, Andhra Pradesh, Maharashtra, and Karnataka; the Indian Supreme Court’s rulings on the asymmetric features of the Constitution; and the role of the courts in upholding asymmetrical provisions and protecting the rights of territorially concentrated minorities in the context of democratic politics.
This article explores the connections between bioethics and basic rights partly by analyzing the basic legal norms of bioethics, and partly by comparing thematic cases from the jurisdictions of the European Court of Human Rights and the US Supreme Court, as well as some cases from other jurisdictions. It focuses on two major lines of thought in contemporary bioethics: the first is concerned with the boundaries of life (e.g., issues of embryo research, assisted reproduction, and end of life decisions) and the second is related to the contemporary exploration of the frontiers of the human body (issues such as the use of human tissues and human DNA for research and other purposes).
Karen Alvarenga Oliveira
This chapter examines the climate change policy of Brazil. In 2010 at the Sixteenth Conference of Parties in Cancún, Brazil announced its voluntary national target of significantly reducing greenhouse gas (GHG) emissions between 36.1 per cent and 38.9 per cent of projected emissions by 2020. These targets were defined in the Brazilian National Policy on Climate Change (PNMC). The PNMC establishes principles, guidelines, and economic instruments for reaching the national voluntary targets. It relies on sectoral plans for mitigation and adaptation to climate change in order to facilitate the move towards a low-carbon economy. The PNMC defined various aspects related to the measurement of goals, formulation of sectoral plans and of action plans for the prevention and control of deforestation in all Brazilian biomes, and governance structure.
Carving Out Typologies and Accounting for Differences Across Systems: Towards a Methodology of Transnational Constitutionalism
This article outlines and assesses the role of ‘typologies’ in comparative constitutional thought. It discusses the transnational context of comparative constitutionalism, constitutionalism in world society, the form and substance of constitutionalism, and the law's troubled relation to society.
This article highlights the trials and tribulations of citizenship in a world of increasing mobility and diversity. The discussion is divided into three parts. Section I provides a concise overview of citizenship's multiple meanings and interpretations. Section II constitutes the bulk of the discussion. It begins by exploring questions of membership acquisition and transfer, which legally determine ‘who belongs’ within the boundaries of a given political community, either by birth or naturalization. It then assesses three recent developments: the growing recognition of dual nationality; the revival of debates about involuntary citizenship revocation; and the ‘cultural turn’ in citizenship discourse, which often makes inclusion in the body politic more difficult for those deemed ‘too different’ from the majority community. Section III charts the major challenges and opportunities facing citizenship in the twenty-first century.