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  1.  16
    From Legal Pluralism to Dual State: Evolution of the Relationship Between the Chinese and Hong Kong Legal Orders.Cora Chan - 2022 - The Law and Ethics of Human Rights 16 (1):99-135.
    This article provides the first-ever comprehensive analysis of how the relationship between the Chinese and Hong Kong legal orders has morphed in nature since China’s resumption of sovereignty over Hong Kong in 1997. It argues that the relationship has evolved from a form of legal pluralism found in the European Union to a monist but bifurcated system—to a “dual state,” to borrow from Ernst Fraenkel’s theory. Recent events, including Beijing’s imposition of a national security law on Hong Kong and its (...)
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  2.  3
    Between the Prerogative and the Normative States: The Evolving Power to Detain in China’s Political-Legal System.Hualing Fu - 2022 - The Law and Ethics of Human Rights 16 (1):61-97.
    This article uses Ernst Fraenkel’s dual-state framework as an analytical tool to study those conflicting imperatives and constitutional tensions with a focus on the power to detain. This article makes the argument that China has emerged as a dual state with a normal state that functions increasingly with a rule-based government in inter-personal matters and a prerogative state that solidifies control in areas that are regarded as political sensitive. Overall, while the equilibrium between the normative and prerogative states has been (...)
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  3.  3
    Constitutional Design and the Urban/Rural Divide.Ran Hirschl - 2022 - The Law and Ethics of Human Rights 16 (1):1-39.
    In this article, I consider a curious blind spot in constitutional scholarship concerning the resurging rural/urban divide—a readily evident phenomenon closely associated with political resentment and anti-establishment sentiments—and how we may begin to address that challenge through creative constitutional designs. Specifically, I draw upon insights from comparative constitutionalism to discuss four main areas of constitutional law and theory that appear to hold some intellectual promise in this context: formal constitutional commitment at the national level to recognizing the urban/rural divide and (...)
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  4.  3
    The Mix of Latin American Populist Constitutionalism.Maria Paula Saffon & Juan F. González Bertomeu - 2022 - The Law and Ethics of Human Rights 16 (1):137-165.
    In this article, we study Latin American populist constitutions and their uses, seeking to analytically understand whether populist constitutionalism is, indeed, a thing. We posit that Latin American populist constitutionalism is a particular form of mixed constitutionalism in three senses: first, as a specific combination of substantive traits that includes both empowering and constraining devices; second, as a peculiar politics of constitutional change that incorporates popular mobilization against pre-existing institutions as a key trait; and third, as a particular practice of (...)
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  5.  2
    Deconstructing Mixed Constitutions.Adam Shinar - 2022 - The Law and Ethics of Human Rights 16 (1):167-192.
    A central task of comparative constitutional law scholarship is categorization and classification of constitutions. Recent scholarship, no doubt informed by the populist tide, has sought to develop the concept of a mixed constitution. Broadly speaking, a mixed constitution is a constitution that integrates liberal and illiberal elements, elements that are usually separate and not found under the same constitution. The study of “mixed constitutions” encompasses both descriptive and normative aspects. First, an attempt to ascertain what, exactly, makes a constitution “mixed.” (...)
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  6.  3
    The Dual State in the United States: The Case of Lynching and Legal Lynchings.Mark Tushnet - 2022 - The Law and Ethics of Human Rights 16 (1):41-59.
    This article uses Ernst Fraenkel’s concept of the “dual state” as the vehicle for examining the role of “lynch law” as a mode of governance of African Americans in the United States from 1865 to 1940. It begins with a largely jurisprudential inquiry placing my interpretation of Ernst Fraenkel’s distinction between the normative state and the prerogative state in dialogue with a version of American Legal Realism, in which law consists entirely of “moves” such as permissible distinctions and analogies that (...)
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