Comparative Constitutional Law (21520). 2 units. This course will provide an overview of comparative constitutional law, through reading and discussion of recent scholarship that has helped to define the subject. The emphasis will be on bringing together (a) the main theories of constitutionalism, and critical responses that they triggered; (b) diverse regions that have been the scene of constitution-making in recent decades (Central and Eastern Europe, East Asia, South Africa, Latin and South America), in comparison with more 'consolidated' constitutional systems (US, Western Europe, Australia), and (c) some of the main dimensions of constitutionalism but with a firm focus on the question of judicial review and constitutional rights.
The first, introductory part of the course (sessions 1 and 2) will be devoted to the very idea of 'constitutionalism' and different approaches to constitutional entrenchment in different systems around the world.
The second part (sessions 3-6) will look at the question of constitutional review in different systems through the prism of three variants: abstractness, ex ante / ex post, and finality of review. We will also discuss two leading theories of the role of constitutional review in new and consolidated democracies: the theory of 'juristocracy' (Hirschl) and 'the insurance model' of judicial review (Ginsburg).
The third part (sessions 7-11) will discuss three main questions with which constitutions around the world have to deal: protection of individual rights, designing the rules for constitution making and amending, and identifying the dominant patterns of constitutional interpretation, with special emphasis on proportionality analysis and on the idea of “public reason” as a proposed standard for judging unconstitutional legislative motivations.
The fourth part (sessions 12-13) will deal with challenges resulting from non-democratic forces, either preceding or questioning democratic constitutionalism; we will discuss "transitional constitutionalism", "militant democracy" as enforced by democratic constitutionalism, and a specially troubling case study of coping with hate speech. The last part (session 14) will discuss so called "supranational constitutionalism" -- a 'translation' of nation-state constitutionalism to the supranational level.
There will be a set of reading materials with links to electronic resources held by the Law School Library, and one main recommended book: Wojciech Sadurski, Rights before Courts (2nd ed., Springer 2014).
Assessment: (1) Each student will be expected to write two or three (depending on the total number of students enrolled) “response papers” of 2-3 pages during the term, raising issues for discussion related to the readings (30%). Those papers will have to be submitted by Friday afternoon prior to a session at which they will be discussed. (2) This is a discussion-based seminar, and class participation will be encouraged (20%). Students are required to read the literature prior to each class. (3) There will be a final essay (50%), on a topic of choice (as approved by the lecturer), to be submitted by the end of the examination session (approx. 3000 words). Paper required. W. Sadurski.