The Migration of Constitutional Ideas

The Migration of Constitutional Ideas

The migration of constitutional principles throughout jurisdictions is without doubt one of the imperative positive factors of up to date constitutional perform. The expanding use of comparative jurisprudence in examining constitutions is one instance of this. during this 2007 e-book, best figures within the learn of comparative constitutionalism and comparative constitutional politics from North the US, Europe and Australia speak about the dynamic methods wherein constitutional platforms impression one another. They discover simple methodological questions that have to date acquired little awareness, and look at the advanced dating among nationwide and supranational constitutionalism—an factor of substantial modern curiosity in Europe. The migration of constitutional rules is mentioned from a number of methodological perspectives—comparative legislations, comparative politics, and cultural reviews of law—and individuals draw on case-studies from a large choice of jurisdictions: Australia, Hungary, India, South Africa, the uk, the U.S., and Canada.

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The Migration of Constitutional Ideas

The migration of constitutional principles throughout jurisdictions is without doubt one of the valuable positive aspects of latest constitutional perform. The expanding use of comparative jurisprudence in reading constitutions is one instance of this. during this 2007 booklet, prime figures within the research of comparative constitutionalism and comparative constitutional politics from North the US, Europe and Australia speak about the dynamic methods wherein constitutional platforms impact one another.

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As a case study, she examines the impact of the Canadian jurisprudence on same sex marriage in the United States. Cossman agrees with Weinrib that the judgments will have little or no direct impact on US legal developments because of US exceptionalism. She argues, however, that the denial by US courts of the validity of Canadian marriages on US soil constitutes itself a form, albeit a thin one, of recognition: if same sex marriage is valid in Canada, it is no 30 sujit choudhry longer unthinkable in the United States.

Cossman’s conclusion is that comparative constitutionalism needs to broaden its methods beyond formal sources of constitutional law to encompass a cultural studies dimension. Part III: Comparative constitutional law, international law and transnational governance Whereas many of the chapters explore the migration of constitutional ideas across national jurisdictions, Mayo Moran and Mattias Kumm enter this debate from a different angle. International law (especially international human rights law) increasingly serves as a source of constitutional ideas for domestic legal orders through judicial interpretation.

By contrast, Hirschl argues, scholars of comparative politics have successfully used a variety of case selection methodologies to explain the political origins and consequences of the recent spread of written constitutions and bills of rights. Hirschl concludes by suggesting that inference-oriented principles of case selection may likewise help scholars to explain why, when and how the migration of constitutional ideas occurs. Mark Tushnet (Some reflections on method in comparative constitutional law) provides a striking contrast to Hirschl.

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