Transconstitutionalism
1st Edition
Published on 1. May 2013
Book
Hardback
246 pages
978-1-84946-418-5 (ISBN)
Description
Transconstitutionalism is a concept used to describe what happens to constitutional law when it is emancipated from the state, in which can be found the origins of constitutional law. Transconstitutionalism does not exist because a multitude of new constitutions have appeared, but because other legal orders are now implicated in resolving basic constitutional problems. A transconstitutional problem entails a constitutional issue whose solution may involve national, international, supranational and transnational courts or arbitral tribunals, as well as native local legal institutions. Transconstitutionalism does not take any single legal order or type of order as a starting-point or ultima ratio. It rejects both nation-statism and internationalism, supranationalism, transnationalism and localism as privileged spaces for solving constitutional problems. The transconstitutional model avoids the dilemma of 'monism versus pluralism'. From the standpoint of transconstitutionalism, a plurality of legal orders entails a complementary and conflicting relationship between identity and alterity: constitutional identity is rearticulated on the basis of alterity. Rather than seeking a 'Herculean Constitution', transconstitutionalism tackles the many-headed Hydra of constitutionalism, always looking for the blind spot in one legal system and reflecting it back against the many others found in the world's legal orders.
Reviews / Votes
...the book combines a thorough (systems) theoretical understanding of constitutional law and world society with a detailed analysis of its implications for concrete cases in this highly complex field. The author deals with a rich pool of theoretical scholarship, including Niklas Luhmann, Gunther Teubner, Hans Kelsen, Martti Koskenniemi, and Anne-Marie Slaughter; but even more importantly for the reader, he also draws on a rich pool of examples of transconstitutional problems. Thus, the book gives a new impulse to the ongoing debate on global constitutional law. It helps practitioners, especially constitutional judges, to comprehend the social conflicts that (invisibly) determine their decisions. For scholars, the book provides an example of the operationalization of system theory to address normative problems in a multicentric world. -- Marie Hesselbarth * International Journal of Constitutional Law, Vol 11, No 4 *More details
Series
Language
English
Place of publication
Oxford
United Kingdom
Publishing group
Bloomsbury Publishing PLC
Target group
Professional and scholarly
College/higher education
Dimensions
Height: 240 mm
Width: 161 mm
Thickness: 19 mm
Weight
555 gr
ISBN-13
978-1-84946-418-5 (9781849464185)
Copyright in bibliographic data and cover images is held by Nielsen Book Services Limited or by the publishers or by their respective licensors: all rights reserved.
Schweitzer Classification
Other editions
Additional editions
Marcelo Neves
Transconstitutionalism
E-Book
05/2013
1st Edition
Hart Publishing
€105.99
Available for download
Marcelo Neves
Transconstitutionalism
E-Book
05/2013
1st Edition
Hart Publishing
€105.99
Available for download
Persons
Marcelo Neves is Professor of Public Law and Legal Theory at the University of Brasilia. He has previously taught and studied at the European University Institute in Florence, the Johann Wolfgang Goethe University in Frankfurt, the London School of Economics, and at the universities of Bremen, Fribourg and Flensburg.
Content
Introduction
1. Theoretical Background
I. Constitution as Metaphor?
II. The Premodern Hierarchical Social Formation
III. The Transition Period: Charters of Freedom or Political Settlements
IV. Multicentric Modern Society
V. From Structural Couplings to Transversal Rationality
2. From Transversal Constitution . . .
I. The Constitution of Constitutionalism
II. The Transversal Constitution of the Constitutional State
III. Transversal Constitutions beyond the State?
3. . . . to Transconstitutionalism between Legal Orders
I. Transconstitutionalism between Legal Orders as a Model for Treating Constitutional Problems
II. Transconstitutionalism between International Public Law and State Law
III. Transconstitutionalism between Supranational Law and State Law
IV. Transconstitutionalism between State Legal Orders
V. Transconstitutionalism between State and Transnational Legal Orders
VI. Transconstitutionalism between State Legal Orders and Extra-state Local Orders
VII. Transconstitutionalism between Supranational Law and International Law
4. Transconstitutionalism in a 'Multilevel' or Multicentric World Legal System
I. Multiangle Transconstitutionalism between Orders of the Same Kind and Orders of Different Kinds
II. Pluridimensional Transconstitutionalism of Human Rights
III. Outlines of a Methodology of Transconstitutionalism
5. Excursus: Limits and Possibilities of Transconstitutionalism in Terms of Empirical Conditions, Functional Requirement and Normative Claim
I. Empirical Conditions: Transconstitutionalism versus Asymmetry of the Forms of Law
II. Functional Requirement: Beyond Constitutional Utopia and Fragmentation - Promoting a 'Differentiated Communication Order' (System Integration)
III. Normative Claim: Beyond Hegemony and Community - Promoting Inclusion ('Social Integration')
Final Comment: The Other Can See Your Blind Spot
1. Theoretical Background
I. Constitution as Metaphor?
II. The Premodern Hierarchical Social Formation
III. The Transition Period: Charters of Freedom or Political Settlements
IV. Multicentric Modern Society
V. From Structural Couplings to Transversal Rationality
2. From Transversal Constitution . . .
I. The Constitution of Constitutionalism
II. The Transversal Constitution of the Constitutional State
III. Transversal Constitutions beyond the State?
3. . . . to Transconstitutionalism between Legal Orders
I. Transconstitutionalism between Legal Orders as a Model for Treating Constitutional Problems
II. Transconstitutionalism between International Public Law and State Law
III. Transconstitutionalism between Supranational Law and State Law
IV. Transconstitutionalism between State Legal Orders
V. Transconstitutionalism between State and Transnational Legal Orders
VI. Transconstitutionalism between State Legal Orders and Extra-state Local Orders
VII. Transconstitutionalism between Supranational Law and International Law
4. Transconstitutionalism in a 'Multilevel' or Multicentric World Legal System
I. Multiangle Transconstitutionalism between Orders of the Same Kind and Orders of Different Kinds
II. Pluridimensional Transconstitutionalism of Human Rights
III. Outlines of a Methodology of Transconstitutionalism
5. Excursus: Limits and Possibilities of Transconstitutionalism in Terms of Empirical Conditions, Functional Requirement and Normative Claim
I. Empirical Conditions: Transconstitutionalism versus Asymmetry of the Forms of Law
II. Functional Requirement: Beyond Constitutional Utopia and Fragmentation - Promoting a 'Differentiated Communication Order' (System Integration)
III. Normative Claim: Beyond Hegemony and Community - Promoting Inclusion ('Social Integration')
Final Comment: The Other Can See Your Blind Spot