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6 - Constitutional History and Constitutional Migration: Nepal

from III - Constitutional Drafting and Revision

Published online by Cambridge University Press:  17 February 2022

David S. Law
Affiliation:
University of Virginia
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Summary

This chapter examines the contested concept of constitutional identity in the comparative constitutional law literature and situates it in the specific jurisdictional context of Nepal. In particular, the analysis concentrates on the foundational function of constitutions and explores the relationship between constitutionalism, identity politics, and constitutional design. Nepal is an ideal case study for exploring the notion of constitutional identity because it sits uneasily within the traditional taxonomies used in the discipline. For instance, Nepal is the only South Asian country that was never colonised and whose legal system does not operate in English, but in the country’s national language, Nepali. This unusual level of historical continuity in the process of nation-building has complicated the construction of constitutional identity, as demonstrated by the embattled historical relationship between the Shah-centered “national monarchy” and democracy, the enduring and controversial position of Hinduism in the constitutional framework, and the patterns of legal discrimination on the basis of identity that persist in the new 2015 constitution.

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Chapter
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Publisher: Cambridge University Press
Print publication year: 2022

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References

Primary Sources

Choudhry, Sujit (ed.), The Migration of Constitutional Ideas (Cambridge University Press, 2006).Google Scholar
Perju, Vlad, ‘Constitutional Transplants, Borrowing, and Migrations,’ in Rosenfeld, Michel and Sajó, András (eds.), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012).Google Scholar
Roznai, Yaniv, ‘Unconstitutional Constitutional Amendments: The Migration and Success of a Constitutional Idea’ (2013) 61 American Journal of Comparative Law 657.CrossRefGoogle Scholar
Symposium Issue: Constitutional Borrowing (2003) 1 International Journal of Constitutional Law 177324.Google Scholar

Secondary Sources

Dhungel, Surya P. S. et al., Dhungel, Adhikari, Bhandari & Murgatroyd’s Commentary on the Nepalese Constitution (DeLF Lawyers Inc., 1998).Google Scholar
Knight, Kyle, ‘Outliers: Sunil Babu Pant, the Blue Diamond Society, and Queer Organizing in Nepal’ (2014) 19 Studies in Nepali History and Society 113.Google Scholar
Letizia, Chiara, ‘Shaping Secularism in Nepal’ (2012) 39 European Bulletin of Himalayan Research 66.Google Scholar
Malagodi, Mara, Constitutional Nationalism and Legal Exclusion (Oxford University Press, 2013).Google Scholar

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