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Fall 2024 Course

Comparative Constitutional Law

Prerequisites:None, constitutional law/politics (of any jurisdiction) helpful but not required.

Exam Type:No Exam

This course is a study of constitutional law and politics from a comparative perspective. It has three features that make it distinctive from, and supplementary to, more traditional courses on constitutional law: first, it examines comparative constitutional law primarily through the lens of plurinational and deeply divided societies. One supposed function of constitutions is to enshrine the priority of political and legal mechanisms over violence for resolving societal disputes. A focus on deeply divided societies will allow us to examine this function closely. We will, therefore, draw our examples not only from constitutionally influential jurisdictions (such as United States, United Kingdom and Germany), but also from constitutions of plurinational or deeply divided societies (such as South Africa, Israel, and India). The course may also include material from jurisdictions firmly outside the ‘canon’ of comparative constitutional law, such as China, Iran, Australia, Thailand, Pakistan, Sri Lanka, Hong Kong, Afghanistan, and the Netherlands.

Second, this course will focus on constitutional values, rather than the usual focus on constitutional rights. We will think about how the values of liberty, equality, and solidarity/fraternity/sorority can manifest themselves in constitutional design—sometimes as rights, but often in forms other than rights.

Third, the course goes beyond a focus on courts and takes constitutional politics seriously. We will look at some non-judicial constitutional actors closely, such as political parties, the political opposition, and ‘fourth-branch’ or guarantor institutions such as electoral commissions, ombudsoffices, human rights and equality commissions, and anti-corruption bodies).

The rough structure of the course is around the following four themes:

  1. Constitutions & Constitutionalism: Basic Concepts (including non-liberal approaches)
  2. Constitutional values: Liberty, Equality, Solidarity/Fraternity/Sorority
  3. Constitution Making in deeply divided societies
  4. Non-judicial constitutional institutions—political parties, guarantor/fourth branch institutions, political opposition

Apart from a flavour of how different constitutional systems try to solve similar problems differently, and an insight into some cutting-edge developments in the practice of constitutionalism, the course should also help you understand your own system better by facilitating its examination from a different— external—perspective. This course will require you to read a lot of secondary material (and some case law). Some of this material can be a bit theoretical and ‘abstract’. If you have mainly studied law through case law until now, this may seem a bit daunting. But fear not, everyone gets the hang of it pretty soon, and help (from me) will always be at hand. Plus, you will expand your repertoire of legal understanding significantly. You may even come to enjoy it, and many in your situation in the past have. No prior knowledge of constitutional law is required. If you have studied constitutional law already, this course will help you look at familiar topics from a somewhat different vantage point.

Note: This course will meet for 12 total sessions on a condensed schedule, over four weeks in September. A makeup session will be held on Friday, September 13th. More scheduling details will be available closer to the start of the term on the course Canvas page.