Comparative Constitutional Theory
Show Less

Comparative Constitutional Theory

Edited by Gary Jacobsohn and Miguel Schor

The need for innovative thinking about alternative constitutional experiences is evident, and readers of Comparative Constitutional Theory will find in its pages a compendium of original, theory-driven essays. The authors use a variety of theoretical perspectives to explore the diversity of global constitutional experience in a post-1989 world prominently marked by momentous transitions from authoritarianism to democracy, by multiple constitutional revolutions and devolutions, by the increased penetration of international law into national jurisdictions, and by the enhancement of supra-national institutions of governance.
Buy Book in Print
Show Summary Details
You do not have access to this content

Chapter 14: Reception, context and identity: a theory of cross-national jurisprudence

Heinz Klug


Abstract: This chapter explores the impact of context in shaping the role of cross-national jurisprudence in national courts and politics. A key element for understanding how context might shape the reception of ‘foreign’ jurisprudence in any jurisdiction is the idea of constitutional identity which articulates the relationship between culture, political economy and law. Through this lens the chapter explores how cross-national jurisprudence is applied in different jurisdictions, at times as a model in support of local developments and at other times as an anti-model explaining why particular claims or arguments are unsuited to the local context. This exploration aspires to build a theory of how cross-national jurisprudence has been shaped by specific judicial and national contexts as well as how different theories that explain how constitutional ideas travel might relate to the use of these rules and ideas in national courts. If the transnational movement of constitutional ideas is recognized, a theory of cross-national jurisprudence provides an additional means of understanding the role of foreign case law in domestic courts. This theory posits that it is through the domestic courts understanding of their own constitutional identity that they translate, apply and hybridize cross-national jurisprudence. A theory of cross-national jurisprudence aspires to add another dimension to our understanding of how constitutional ideas travel.

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.

Further information

or login to access all content.