Transconstitutionalism

By Marcelo Neves

Contributions by: Kevin Mundy

'Transconstitutiononalism' is a concept used to describe what happens to constitutional law when it is emancipated from the state, wherein can be found the origins of constitutional law. Transconstitutionalism exists partly because a multitude of new constitutions have appeared, but mainly 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. This book is a study of transconstitutiononalism, how it is evolving, and how it effects legal systems. (Series: Hart Monographs in Transnational and International Law - Vol. 10)


246 pages

Publication Date: 5/1/2013
Format: Cloth
ISBN: 9781849464185