Law and Diversity: European and Latin American Experiences from a Legal Historical Perspective.
Vol. 1: Fundamental Questions
Peter Collin, Agustín Casagrande (eds.)
Global Perspectives on Legal History 21
Frankfurt am Main: Max-Planck-Institut für Rechtsgeschichte und Rechtstheorie 2023. XII, 764 S.
Online-Ausgabe: Open Access (PDF-Download, Lizenz: Creative Commons CC BY 4.0 International)
Druckausgabe: 42,84 € (Print on Demand bei ePubli)
ISSN 2196-9752
ISBN 978-3-944773-40-7
eISBN 978-3-944773-41-4
Quotation link of the online version: http://dx.doi.org/10.12946/gplh21
The principle of equality is one of the cornerstones of modern legal systems. Modern law is based on equality, and therefore assumed to stand in sharp contrast to the law of pre-modern, estates-based societies characterised by special legal regimes for particular groups or individuals. However, it is worth asking if this dichotomy can perhaps only be maintained if one looks solely at the fundamental postulates and the major codifications with their equality-orientated system formations. ‘Modernity’, too, is highly socially differentiated and continues or transforms ‘pre-modern’ distinctions to a not inconsiderable extent. All of this is often reflected in special rules created by the state or by the groups themselves – even if, in the latter case, they are often not recognised as law.
In this volume, the term ‘diversity’ denotes constellations of social difference that are relevant to normativity. This understanding of diversity only partially overlaps with the categories of postmodern diversity discourses. Rather, this volume’s central questions ask what social differences are relevant to normativity, to what extent and in what respect. Or, to relate it more specifically to the relationship between law and diversity: which social differences also make a difference to the law?
A comparative look at European and non-European developments provides a broader perspective on these issues. In this context, Latin America is a particularly fruitful field of investigation. On the one hand, a translation of European legal traditions already took place during the colonial period and, after independence, Latin American states striving for modernity often took recourse to European legal ideas and regulatory models. On the other hand, the legacy of the colonial past continued to have a formative influence, and the social differentiation to which the law had to respond was largely different from that in European societies.
To ensure that bringing together European and Latin American perspectives did not result in a series of mere juxtapositions, the contributions on the development of a specific national legal system are accompanied by comments written by experts on other national legal systems. These comments, firstly, outline the comparative development in a different state and, secondly, highlight differences and similarities. European and Latin American authors alternate. The period under discussion is the last 200 years.
In volume 1, the authors deal with fundamental questions of law and diversity. Further volumes on public law, private law and criminal law will follow.
Contents
IX Preface
1 Introduction
First Part: Thinking on Diversity and Law
Section I: National Traditions of Social Theoretical Contouring of Social Differences
41 Alfons Bora
Social Differentiation, Inequality, and Diversity in the Sociological Theory of Law –
An Outline of the German Debate
93 Augustín Casagrande
Comment: Law, Diversity and Sociological Imagination in Argentina (20th–21st Centuries)
Section II: Traditions of Pluralistic Legal Thinking
117 Ralf Seinecke
Traditions of Pluralistic Legal Thought: The Example of Germany
177 Armando Guvara Gil
Comment: Monist or Pluralist Legal Tradition in 19th-Century Peru?
209 Rodrigo Míguez Núñez
Comment: Pluralistic Legal Thought in Chile: A Critical Overview
Second Part: Tendencies
Section I: Diversity and Nation-building
231 Pedro Henrique Ribeiro
National Identity through Diversity – Brazilian Nation Building Ideas and Theories,
1920–1948 (and their Aftermath)
267 Bruno Debaenst
Comment: The Tower of Babelgium. The Never-ending Belgian Nation-building
283 Alfons Aragoneses
Comment: The “cuestión foral”: Legal Diversity and Nation-building in Spain
283 Ezequiel Adamovsky
Comment: Diversity and Nation Building in the Periphery: Some Thoughts from Argentina
Section II: Legal Lines of Development of Discrimination and Anti-Discrimination
313 Fernando Muñoz
Discrimination: On the Constitutional History of a Fundamental Concept – a Chilean Perspective
347 Barbara Havelková
Comment: The Different Meanings of Discrimination from a Czech Perspective
Section III: Anthropological Approaches
359 Orlando Villas Bôas Filho
Juridification and the Indigenous Peoples in Brazil: The Ambivalence of a Complex Process
385 Eduardo Zimmermann
Comment: Racial Thinking and Ethnic Minorities in Latin America
395 Nancy Yáñez Fuenzalida
Comment: The Juridification of Indigenous Claims in Latin America: Obstacles and Challenges
Third Part: Legal Frameworks
Section I: The Constitutional Embedding of Differences
421 Manuel Bastias Saavedra
The Constitutional Embedding of Differences: Chile (1810–1980)
445 Agnieszka Bień-Kacała and Anna Tarnowska
Comment: The Constitutional Embedding of Differences, 1921–1997: The Polish Example
Section II: System and Codification – Exclusion or Inclusion of Special Law?
467 Massimo Meccarelli
The Limits of Equality: Special Law in the Age of Legal Monism in Italy (19th–20th Centuries)
501 Carsten Fischer and Hans-Peter Haferkamp
System and Codification – Exclusion or Inclusion of Special Law? A German Perspective
517 Jean-Louis Halpérin
Comment: A French Perspective about the Limits of Equality in 19th–20th Centuries Law
533 Thiago Reis
Comment: Diversity, Codification and Political Representation:
Comments from the Brazilian Perspective
Section III: Autonomy
547 Peter Collin
German Discourses on Autonomy from the Beginning of the 19th Century Until Today
569 Michele Pifferi
Comment: Construction and De-construction of Legal Identity:
Different Notions of Autonomy in Italian Legal Thought (19th–20th Centuries)
581 Agustín Casagrande
Comment: Autonomy, Subjectivity and Diversity: Genesis and Logic
of a Juridical-political Concept in Argentina (19th–20th Centuries)
Section IV: Legal Person and Legal Personality
601 Samuel Barbosa
Mask of Legal Subjectivity: Equality and Difference within Personal Regimes in Brazil (1824–1988)
625 Stephan Kirste
Comment: The Theory and Ethics of the Person in Law: The German Perspective
641 Victoria Barnes
Comment: Legal Person and Legal Personality: A View from English Legal History
Section V: Linguistic Diversity and the Language of Law
657 Gloria Patricia Lopera-Mesa
Linguistic Diversity and the Language of State Law in Colombia, 1819–2019
681 Thomas Simon
Comment: Austria-Cisleithania – a Non-nation Multi-ethnic State and its Language Policy
693 Zülâl Muslu
Comment: From Pragmatic Overtness to Legal Taxonomy of Equality.
Ottoman-Turkish Perspectives on Colombian Linguistic Diversity and Law
717 Stefan B. Kirmse
Comment: Linguistic and Cultural Diversity in the Legal Sphere: Insights from Late Imperial Russia
Conclusion
737 Leonard Wolckenhaar
Categories and Concepts, Themes, References, and Outlooks
in the Conference Discussions on “Law and Diversity”.
A Structured Summary
757 Contributors