Law and Diversity:
European and Latin American Experiences from a Legal Historical Perspective
Vol. 2: Public Law
Peter Collin, Manuel Bastias Saavedra (eds.)
Global Perspectives on Legal History 29
Frankfurt am Main: Max-Planck-Institut für Rechtsgeschichte und Rechtstheorie 2026. XII, 766 S.
Online version: Open Access (PDF-Download, Lizenz: Creative Commons CC BY 4.0 International)
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ISSN 2196-9752
ISBN 978-3-944773-56-8
eISBN 978-3-944773-57-5
Quotation link of the online version: http://dx.doi.org/10.12946/gplh29
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, estate-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.
These questions are addressed in the multi-volume publication “Law and Diversity: European and Latin American Experiences from a Legal-Historical Perspective”. In volume 1, the authors dealt with fundamental questions of law and diversity. The present volume, the second in the series, focuses on public law. Further volumes on private law and criminal law will follow.
Contents
XI Preface
1 Introduction
Public Law, Pluralism, and Colonialism
33 Luigi Nuzzo
Santi Romano and the Colonial Origin of Legal Pluralism
73 Gustavo César Machado Cabral
Comment: Public Law, Diversity, and Colonialism Between the Late 19th and Early 20th Centuries
Concepts of Citizenship
97 Eduardo Zimmermann
Concepts of Citizenship: Social and Political Citizenship in Argentine Historiography
113 Dieter Gosewinkel
Comment: The Genesis and Development of Citizenship and Nationality Law in 19th- and 20th-Century
Germany – In Comparative Perspective to Latin America
139 Pablo Marshall
Comment: T. H. Marshall’s Theory of Citizenship in Chile: A Short-lived Evolutionary Achievement
Freedom, Fundamental Rights, and Diversity
157 José M. Portillo
Territorial Diversity and Political Rights in Spain
179 Julio César Guanche
Comment: Diversity and Fundamental Rights in Cuba
191 Eugenio Velasco-Ibarra
Comment: Diversity and Fundamental Rights in Mexico
203 Nenad Stefanov
Comment: Political and Fundamental Rights in a Diverse Society: The Yugoslav Perspective
Diversity and Electoral Law
219 Pablo Marshall
Diversity and Participation in Chilean Electoral Law
241 Agnieszka Bień-Kacała, Tomasz Brzezicki and Anna Tarnowska
Comment: Diversity and its Reflection in Polish Electoral Law (1918–2021)
261 Blanca Rodríguez-Ruiz
Comment: Democratic Citizenship, Diversity and Electoral Law:
Some Brief Comments and Reflections from a Spanish Perspective
Diversity and Territorial State Organisation
279 Andrés Estefane
Territorial Organisation and Administrative Diversity in Chile (1810–2021)
305 Stefan B. Kirmse
Comment: Territorial Organisation and Autonomy in Russian History: A Comparative Overview
333 Samuel Barbosa
Comment: Diversity and Territorial Organisation in Brazil
The Principle of Equality
353 Liliana Ronconi
Comment: Diversity and Territorial Organisation in Brazil
375 Alberto Coddou McManus
Comment: The Constitutional History of Equality and Non-Discrimination in Chile
Special Protection Regimes for Women
409 Gloria Nielfa
Special Protection Regimes for Women in Spain
443 Karin Neuwirth
Comment: Special Protection Regimes Concerning Labour and Social Insurance for Women in Austria
in the 19th and 20th Centuries
Public Order and Dangerous Groups
465 Maria Pia Guerra
Social Exclusion and the Special Legal Regime for Dangerous Groups:
Anarchists, Communists, and Political Protest in Brazil
499 Jeniffer Illuzzi
Comment: Executive Primacy in Italian Antiziganist Policy During the 20th Century
515 Agustín E. Casagrande
Comment: Undesirables in Front of the Law:
An Interpretation from Argentinian Constitutional Culture (1910–2017)
531 Sigrid Wadauer
Comment: Diversity, Variation, Difference, and /or Inequality?
An Outline of Research Problems Concerning Expulsions in the Habsburg Empire /Austria
555 Beate Althammer
Comment: Excluding Anarchists and Other Undesirables: The Case of Germany
Migrants and Foreigners
585 Christiane Reinecke
Navigating Different Equality Regimes: Hierarchies of
Non-Citizenship in Germany and the European Community
607 Andreas Fahrmeir
Comment: Hierarchies of Non-Citizenship: The British Experiences
Corporatist Structures
621 Peter Collin
Corporatism and Diversity in Germany
649 Sebastián Martín
Comment: Corporatism and Diversity in Spain (1808–1945)
673 Rafael Lamera Giesta Cabral
Comment: Corporatism Experiences in Brazil
691 Irene Stolzi
Comment: Corporatism and Diversity in 19th–20th-Century Italy
Universalization and Differentiation of Social Welfare
721 Wilfried Rudloff
Universalism, Differentiation, and Segmentation in the German Welfare State
751 Andrej Slivnik
Comment: Universalisation and Differentiation of Social Welfare: the Brazilian Perspective
767 Contributors