Comparing constitutions

Nota:

• Frankenberg,G. (2006), “Comparing constitutions: Ideas, ideals, and ideology—toward a layered narrative”, International Journal of Constitutional Law, NYU School Law, Vol. 4 No. 3, pp. 439–459    

1. Shortcuts
   1. Systems theory

      Nota:

      • ST praises shortcuts as a reduction of complexity
      1. shortcuts
         1. reduction of complexity
   2. Functionalism

      Nota:

      • Functionalism uses ‘‘function,’’ ‘‘solution,’’ and the presumption of similarity (between differing systems) as shortcuts.
      1. presumption of similarity
   3. Postivism
      1. Reduction to what can be seen

         Nota:

         • Reduce the world to  legal norms, arguments, procedures and institutions 
2. 3 fallacies
   1. cognitivist fallacy
   2. functionalist fallacy

      Nota:

      • Only looks at " brute facts" -A FC picks a social problem, always already framed in terms of law, and then moves on to its legal soltion  OVERCONFIDENT that law is self-confident and automonous system of conflict management FC's  secretly dreams of an agenda of sameness -cultiviates a superficial visoon of legal globalization
   3. hermeneutic fallacy

      Nota:

      • built upon a double reduction of the approach that focuses on the interpretation and better , that is more authentic understanding  of the law+ cultural analysis of the law Law appears only as a legislative or judicial script written for instrumental purpose  1. to regulate human behaviour 2. to shape conciousness 3. guide institutional operations divorces culture from law Denis the dynamic, dialectical law/ power and law/ culture rel. ship
3. 4 constitution archetypes
   1. the constitution as
      1. contract
         1. dates back to Magna Carta

            Nota:

            • early contractual model established a el. ship between the monarch and the barons, presupposing mambership of the contracting parties  in one of the estates of the estates of the feudal order
      2. manifesto
         1. epitomized by the French Décl. of 1789
      3. program
      4. law
4. Doing CL
   1. 1. Read
      1. 2. construct a writing
      2. texts written by framers

         Nota:

         • constitutional elites/ advisers, glossators, commentators, scholars, legislators and judges.     
5. Const, doc. bear a close rel. ship to pol + ethics
   1. permeated by...
      1. ideas

         Nota:

         • ( def) “knots of significations that “framers” courts and commentators have spunt” (s. 440)     
      2. ideals

         Nota:

         • Capture the programmatic, utopian, or at any rate speculative visions believed to be enshrined in a constitutional document. –Signify collective goals to be pursued –for example max. individual freedom  or high  standard of equality, a society progressing from capitalism to socialism     
      3. ideology

         Nota:

         •         Ideals turned sour but still upheld for the purposes of political domination, social exclusion or the reproduction of social injustice Can also be:  A system of ideas or a way of thinking that forms the basis for some political, economic, or constitutional  theory that justifies actions and may be maintained irrespective of events and costs –f.ex. market economy Ideals turned sour but still upheld for the purposes of political domination, social exclusion or the reproduction of social injustCan also be:  A system of ideas or a way of thinking that forms the basis for some political, economic, or constitutional  theory that justifies actions and may be maintained irrespective of events and costs –f.ex. market economy     
6. Frankenberg wants to create layered narrative
   1. connect constructive method with constitutive theory
7. Definition
   1. Higher supreme law
      1. qualifies when...

         Nota:

         • produced by law-making body, such as a constitutional assemby, convention, or the like
      2. is elevated by
         1. language
         2. invoking presence of sth higher/ Divinity
8. adresses questions of...
   1. the good life
      1. signifiers
         1. common well
         2. common good
         3. social co-existence
9. Narrative analysis
   1. Master plan & specific composition

      Nota:

      •     in a structuralist vein , the narrative analyses  the constitutional architecture  dominated by a master plan,  whose elements are rights and principles, values and duties, organizational provisions, and rules for constitutional  amendement and interpretation  Elements of master plan correspond to global repertoire ----their specific composition and distinctive details reflect the local knowledfe that is crucial  to the revitalization of comparative constitutional law     
10. The comparatist

    Nota:

    • The comparatost  appears an intellectual nomad –bereft of a genuine field of law –left with a questionable and in the rescent past  challenge method with which to handle an explosion of fact/ big piles of info  Always has to serttle with incomplete knowledfe and less than totak cognitive control (441)