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.
Herbert M. Kritzer
This article analyzes the concept of the legal mobilization of laws and institutions for the redressal of “justiciable” problems—problems for which a remedy can potentially be obtained through legal processes. The dispute-processing approach initiates the naming, blaming, claiming framework, to understand the reasons that substantial “perceived injurious experiences” (PIE) do not mature into lawsuits. This article proceeds further with the discussion of the idea of a “dispute pyramid.” This method presents a real problem of asserting injuries that are unperceived, subjective in nature. Broad methodological approaches are applied in empirical research regarding claiming. The expansive methodological spectrum includes, structured surveys, institutional records ethnography etc. This article then examines the explanations that have been advanced for variations in claiming patterns, both at the individual and the aggregate levels. It analyses the points of general agreement and issues where agreement is lacking and proposes an agenda for future research related to claiming.
This chapter discusses India’s role in international climate law and its domestic law on climate change, and demonstrates the limits of its legal position in addressing climate-related threats. Climate change presents a complex challenge for India, which is reflected in its evolving set of climate change laws and policies. Aside from being one of countries most vulnerable to climate change, India is home to some of the world’s poorest people whose lives and property are threatened by climate change. The government has adopted various initiatives to comply with the Kyoto Protocol. The central national initiative on climate change is the National Action Plan on Climate Change (NAPCC). Action under NAPCC is premised on the principle of sustainable development, which for the purposes of climate change means achieving growth while at the same time minimizing greenhouse gas emissions.
This chapter is concerned with EU’s climate change law and its impact on climate change action at a global level. It investigates whether the international climate change regime ‘tightens’ its own standards so as to match EU climate change law. The corpus of EU climate change law is codified in the Climate and Energy Package, which aims to provide a comprehensive and integrated climate change framework. It includes measures promoting the use of renewable energy, specifying and thus helping to monitor and reduce greenhouse gases from fuel, setting standards for new passenger cars, establishing a framework for the geological storage of carbon dioxide, outlining the effort of Member States to reduce greenhouse gases to meet the 2020 commitments, as well as revising the EU emissions trading regime (ETS).
This article examines the phenomenon of collective or aggregate civil litigation, manifested in different forms as a class action, representative action, or group action. Different countries have adopted different models of collective civil litigation. This diversity presents a challenge in drawing comparisons, and raises the need to study the different techniques involved. This article summarizes the adoption of a technical perspective. Following this, the article reviews the availability and limitations of the research techniques in relation to what we want. It discusses the questions of goals of collective procedures, levels of need, technical modes of operation, and evaluation. The ultimate goal is to be able to compare different techniques and decide which ones might work best and in what circumstances or types of situation. There is plenty of research to be done in this field.
John S. Bell
Comparative administrative law is a long-standing discipline. The study of other administrative law systems both in order to understand one's own system better and to find models for improvement has been occurring for over 150 years. This article describes the scope of the subject, the values served by administrative law, and influences shaping administrative law. It also compares the powers, organizations, and procedures of the administration, as well as legal redress.
David J. Gerber
This article examines comparative competition law. It looks first at the current state of the literature. It envisions a path for comparative antitrust law scholarship that may allow it to realize more fully its potential value and respond more effectively to the challenges of economic globalization. Three main themes run through this article. One is that US law dominates the world of comparative competition law scholarship. A second is that the centrality of US law and experience divides the writing in the area and often distorts it. The third thread that runs through this article identifies the potential impact of economic globalization on the agenda of comparative competition law and the opportunities it creates for writers in the area to contribute to creating a sounder policy framework for transnational markets.
Procedural law, and civil procedure in particular, was long neglected by comparative scholars. Perceived as painstaking, ministerial, and ultimately boring, the subject was dreaded by students and avoided by professors who had higher aspirations. This article first examines the attempts to categorize and label procedural systems, an impulse that many comparatists should resist. The focus then shifts to procedural harmonization, a term that encompasses a number of topics of increasing importance to proceduralists. After illustrating the dynamics and results of regional and supra-regional harmonization initiatives, the discussion looks at trends towards harmonization through private rule making and at principles that determine the scope of, and limits to, procedural harmonization. The last section addresses the growing concern about access to justice, specifically cost considerations and claim aggregation techniques, which prompt the somewhat related questions of whether and to what extent one legal system can borrow procedural rules from another one.
Klaus J. Hopt
Comparative company law is at once very old and very modern. It is very old because ever since companies and company laws first existed, trade has not stopped at the frontiers of countries and states. The persons concerned, practitioners as well as rule-makers, had to look beyond their own city, country, rules, and laws. But comparative company law is also very modern. Most comparative work has focused on the main areas of private law, such as contract and torts, rather than company law. This article focuses on law and related rulemaking. It tries at least to touch upon the company law of five legal families in an eclectic way. It examines traditional and modern contracts in company law and comparative law, the harmonization of company law in the European Union, capital market law, and perspectives for future research.
Stephen Gageler and Will Bateman
This chapter points out the orthodoxy in Australia of consulting foreign law as an ordinary part of the interpretation and application of ‘constitutional provisions with a common genetic or genealogical root’. Australian constitutional experience has demonstrated for more than a century how comparative constitutional analysis can illuminate the resolution of constitutional issues arising within a domestic legal system. In its exposition and development, no less than in its inspiration, Australian constitutional law has benefited from the consideration of foreign precedent. Constitutional ideas which have found expression in foreign judicial pronouncements have been appropriated and adapted when found to shed light on domestic constitutional issues, and discarded when not. That approach to the evaluation and utilization of foreign constitutional precedent has been nothing more than an aspect of the application of common law methodology to constitutional interpretation.
This article examines the evolution of the field of comparative constitutional law and its relationship to politics and international rights; constitutionalism; constitutional foundings and transformations; constitutional structures; structures of judicial review; generic constitutional law; and national identity. Innumerable comparative studies address the ways in which different constitutions and constitutional systems deal with specific topics, such as privacy, free expression, and gender equality. However valuable such studies have been in bringing information about other constitutional systems to the attention of scholars versed in their own systems, their analytic payoff is sometimes questionable. Scholarship in comparative constitutional law is perhaps too often insufficiently sensitive to national differences that generate differences in domestic constitutional law. Or, put another way, that scholarship may too often rest on an implicit but insufficiently defended preference for the universalist approach to comparative legal study over the particularist one.