Comparative Constitutional Design and Legal Culture
Studies in Comparative Law and Legal Culture series
Edited by Günter Frankenberg
Chapter 1: Comparative constitutional studies and the discourse on legal transfer
Debating the relevance of comparative constitutional studies and its vocabulary assumes the existence of a plural international legal order with detectable differences between constitutional constructions and regimes, because “there is no point in comparing what is identical.” The law(s) of the world could not easily be described within the frame of a uniform world constitutionalism or a particular blueprint of the world. The myth of modern-style globalization with its inexorable unifying tendencies is not intense enough to generate convincing criteria for an envisaged globally uniform system. The world of constitutions and its studies thus remains colorful. The law(s) of foreign countries have always attracted legal scholarship and practice. The historical view identifies a long tradition of comparative studies which can be traced back to the ancient western world, where Aristotle examined the constitutions of the Greek (city) states and the customs of the Greeks, the Romans, and the so-called “Barbarians,” while the later ideas of Montesquieu in his Spirit of the Laws and of John Adams, Alexander Hamilton, and James Madison in their Federalist Papers laid down the foundation of what became the more “modern” approach to comparative law which had its starting point at the First International Congress of Comparative Law in 1900. Finally the emerging processes of transnational governance and economic, political and social interdependence within complex structures of new communication and information technologies expanded interest among political and legal scholars and practitioners in the constitutional laws and institutions of other countries and areas of the world and generated the “rise of comparative constitutional law.”
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