COMPARATIVE CONSTITUTIONAL LAW (LAW 230)

Transcription

1 COMPARATIVE CONSTITUTIONAL LAW (LAW 230) Spring Quarter, Instructor: Maryam Khan Course Timings: Mon & Wed, am pm Office Hours: By prior appointment (from Mon through Thurs) Contact: maryamk@lums.edu.pk ; ext Course Objectives This is a core law course designed to introduce students to the historical development and conceptual breadth of constitutional law in comparison. This broad brush approach will help students synergize the concepts, issues and debates in comparative constitutional law with other courses they will be taking in future, including human rights, and constitutional history and constitutional law of Pakistan. We will critically assess broader historical, political and sociological questions surrounding constitution-making processes, constitutional structure and design, judicial enforcement of constitutions, the rise of global constitutionalism, constitutional rights, judicial roles and accountability, and Islamic constitutionalism. In exploring such a broad conceptual terrain, the readings assigned will aim to synthesize analyses from interdisciplinary sources. While the UK and US constitutional frameworks and systems will be used as reference points, we will also critically engage with constitutional developments in South Asia broadly, with particular emphasis on India and Pakistan. As already stated, this is not intended as a narrow black letter law course. Our objective will be to interweave questions of comparative constitutional law with comparative political history and development, with the caveat that our focus will be on modern constitutions and constitutionalism. Further, we will be engaging almost entirely with common law systems, with perhaps some cursory glances along the way at civil law systems. Teaching Methodology & Grading The classes will encourage interactive dialogue and all students will be given a chance to make short presentations in class on the basis of the readings. Students must come to each class prepared, and with all the relevant materials for that day. Students are reminded that the attendance policy will be strictly implemented. The final grade for the course will comprise of the aggregate of the following grading instruments: Class Participation 20% 2 Response Papers 40% Final Exam/Paper 40% 1

2 COMPARATIVE CONSTITUTIONAL LAW SYLLABUS PART I Introduction: The Why & How of Comparative Constitutional Law 1. No Readings. 2. Why Comparative Constitutional Law? We take a critical look at the aims and functions of comparative constitutional law. Along with the larger discourse on constitutional migration and its implications, we explore the sub-theme of constitutional comparativism, or the import of legal authority from foreign jurisdictions by domestic constitutional courts, through a case study. Michel Rosenfeld, Constitutional Migration and the Bounds of Comparative Analysis, NYU Annual Survey of American Law, Vol. 58, 2001, Roper v. Simmons, 543 U.S. 551 (2005) (pay particular attention to Part IV of the majority opinion; Part II.D. of Justice O Connor s dissent; and Part III of Justice Scalia s dissent). Vicki C. Jackson, Constitutional Comparisons: Convergence, Resistance, Engagement, Comment in 119 Harv. L. Rev. 109, Nov. 2005, Methodological Issues in Comparative Constitutional Law Morton J. Horwitz, Constitutional Transplants, 10 Theoretical Inq. L. 535, 2009, Ran Hirschl, The Question of Case Selection in Comparative Constitutional Law, American Journal of Comparative Law, Vol. 53, 2005, James Gordley, Comparative Legal Research: Its Function in the Development of Harmonized Law, American Journal of Comparative Law, Vol. 43, 1995, Part II Comparative Constitutional & Constitution-Making Histories Our point of entry is constitutional and political history which provides the necessary context for comparison of constitutional systems and discourse in general, and the divergence and variations in constitutional design in particular. We start with the brief study of the processes of modern state-building in Europe and the attendant evolution in the nature of sovereignty and rule of law, with the objective of understanding the rise of 2

3 modern constitutional traditions. We then move on to the Lockean beginnings of constitutionalism, and from there to the pioneer of representative government: Britain in the 19 th century. The materials rely heavily on legal historians and philosophers who, quite apart from illuminating the various aspects of British constitutionalism and parliamentarism, also engage in comparative insights with the constitutional structure and ethos of 19 th century America. The following session looks at constitutional developments in the US, with particular emphasis on the doctrine of separation of powers and constitutional supremacy. The last two sessions focus on changing notions of constitutionalism and constitution-making processes to underscore the political nature of constitutionalism. 4. A Brief Intellectual & Political History of Constitutionalism: Rule of Law, Classical Liberalism, and Sovereignty Brian Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge, 2004), J. J. Sheehan, Presidential Address: The Problem of Sovereignty in European History, American Historical Review, 111:1, 2006, Seeds of Modern Constitutionalism: Glorious Revolution, Bill of Rights and Locke s Second Treatise on Civil Government The Glorious Revolution, House of Commons Information Office, Factsheet G4 General Series, August 2010, 1-7. John Locke, Second Treatise of Government (1689), (excerpts of about 30 pages). Robert Faulkner, The First Liberal Democrat: Locke s Popular Government, Review of Politics, 63:1, Winter 2001, The Case of Britain: Representative Government & Parliamentary Sovereignty J. S. Mill, Considerations on Representative Government (1861), Beth E. Warner, John Stuart Mill s Theory of Bureaucracy within Representative Government: Balancing Competence and Participation, Public Administration Review, July/August 2001,61:4, V. Dicey, Introduction to the Study of the Law of the Constitution (1885; 5 th ed., 1897), 37-40,

4 7. American Exceptionalism : Separation of Powers & Popular Sovereignty Extract from Montesquieu, The Spirit of the Laws, 1748 (also in the Modern History Sourcebook at James Madison, Federalist No. 47 in The Federalist Papers (1787) (Clinton Rossiter ed. 1999) p (also at Benjamin F. Wright, Jr., The Origins of the Separation of Powers in America, Economica, No. 40, May 1933, Gordon S. Wood, Eighteenth-Century American Constitutionalism, Brown University. John C. Goodman, What is Classical Liberalism?, National Center for Policy Analysis. The Constitution of the United States of America (for reference). 8. Changing Conceptions of Constitutionalism Gerhard Casper, Changing Concepts of Constitutionalism: 18 th to 20 th Century, Supreme Court Review, Vol. 1989, 1989, Jo Murkens, The Quest for Constitutionalism in UK Public Law Discourse, Oxford Journal of Legal Studies, 29:3, 2009, Peter Quint, What is a Twentieth-Century Constitution?, University of Maryland School of Law, Legal Studies Research Paper No , Constitution-Making Processes Jon Elster, Forces and Mechanisms in the Constitution-Making Process, Duke Law Journal, 45:2, 1995, pp Tribe and Landry, Reflections on Constitution-Making, Am. U. J. Int l L. & Pol y Y, 8:627, Heinz Klug, Constitution-Making, Democracy and the Civilizing of Unreconciliable Conflict: What Might We Learn from the South African Miracle?, University of Wisconsin Law School, Legal Studies Research Paper Series, Paper No/ 1046, May 2007,

5 Part III Judicial Enforcement of Constitutions 10. Genesis of Judicial Review & the Counter-Majoritarian Problem Alexander Hamilton, Federalist No. 78 in The Federalist Papers (1787), also available at Marbury v. Madison, 5 U.S. 137 (1803). Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Yale, 2 nd ed., 1986), Judicial Review & Its Influence Abroad Donald P. Kommers, Judicial Review: Its Influence Abroad, Annals, AAPSS, 428, Nov. 1976, Mark Tushnet, Marbury v. Madison Around the World, 71 Tenn. L. Rev. 251, 2004, Human Rights Act 1998 (UK) (for reference). Ariel Bendor and Zeev Segal, Constitutionalism and Trust in Britain: An Ancient Constitutional Culture, A New Judicial Review Model, 17 Am. U. Int l L. Rev. 683, 2002, Michael L. Principe, Albert Venn Dicey and the Principles of the Rule of Law: Is Justice Blind? A Comparative Analysis of the United States and Great Britain, Loy L.A. Int l & Comp. L. Rev., 22:357, , Judicial Review & Popular Sovereignty, and the Question of Constitutional Amendments Jeremy Waldron, The Core of the Case Against Judicial Review, Yale Law Journal, 115:6, April 2006, S. P. Sathe, Judicial Activism: The Indian Experience, 6 Wash. U. J. L. & Pol y 29, 2001, (excerpts). Maryam Khan, Selective Borrowings, Seminar: A Monthly Journal, Special Symposium on 60 Years of the Indian Constitution ( ), Part IV Comparative Constitutional Rights & Interpretive Frameworks 5

6 13. Constitutional & Human Rights in Historical & Comparative Perspective Paul Finkelman, James Madison and the Bill of Rights: A Reluctant Paternity, Supreme Court Review, 9:301, 1990, Mary Ann Glendon, Rights in Twentieth Century Constitutions, 59 U. Chi. L. Rev. 519, Amartya Sen, Human Rights and Asian Values, Carnegie Council on Ethics and International Affairs, 1997, The Political & Civil Rights Versus Social & Economic Rights Debate Ruth Gavison, On the Relationships Between Civil and Political Rights, and Social and Economic Rights, Amartya Sen, Political Rights Versus Economic Needs?, Ellen Wiles, Aspirational Principles or Enforceable Rights? The Future for Socio-Economic Rights in National Law, Am. U. Int l L. Rev., 22:35, 2006, Citizenship & Right to Equality I: Concepts Aristotle, Politics, Book III, Chapters 1 to 5, in Aristotle: On Man in the Universe, Classics Club (Louise Loomis, ed.), 1943, T. S. Marshall, Citizenship and Social Class, in Inequality and Society (Manza and Sauder, ed.), Norton, 2009, Peter Schuck, Three Models of Citizenship, in Citizenship in America and Europe, Colm O Cinneide, The Right to Equality: A Substantive Legal Norm or Vacuous Rhetoric, UCL Human Rights Review, 1:1, 2008, Citizenship & Right to Equality II: South Asian Perspectives Subrata Roy Chowdhury, Equality Before the Law in India, Blasphemy 17. Freedoms of Speech, Association & Religion 6

7 Geoffrey Stone et al., The First Amendment (New York, 2004, 3 rd ed.) Chapter 1 entitled History and Philosophy of Free Expression, Patrick Weil, Lifting the Veil, French Politics, Culture and Society, 22:3, Social & Economic Rights, and the Right to Life Justice Albie Sachs, Social and Economic Rights: Can They Be Made Justiciable?, SMU Law Review, Vol. 53, 1381, 2000, Nick Robinson, Expanding Judiciaries: India and the Rise of the Good Governance Court, 8 Wash. U. Global Stud. L. Rev. 1, 2009, Maryam Khan and Osama Siddique, The 2005 South Asian Earthquake: Natural Calamity or Failure of State? Exploring State Liability and Remedies for Victims of Defective Construction in Pakistan, (2007) 9 Asian Law, 187, Upendra Baxi, Taking Suffering Seriously, Social Action Litigation in the Supreme Court of India, in The Role of the Judiciary in Plural Societies, Tiruchelvam and Coomaraswamy (eds.), International Centre for Ethnic Studies, 1987, Right to Property John Locke, Of Property, Second Treatise on Government (1689), Gregory Alexander, The Formalist Trap: Text and Tradition in the Interpretation of Constitutional Property Clauses, in The Global Debate Over Constitutional Property, 2006, Part V The Judiciary 20. Judicial Independence & Performance Christopher M. Larkins, Judicial Independence and Democratization: A Theoretical and Conceptual Analysis, The American Journal of Comparative Law, vol. 44, 1996, Stephen Burbank, What Do We Mean by Judicial Independence?, Ohio State Law Journal, 64:323, 2003,

8 Staats, et al., Measuring Judicial Performance in Latin America, Latin American Politics and Society, 47:4, Winter 2005, Judicial Appointments & Accountability Nomination of Judge Clarence Thomas to be Associate Justice of the Supreme Court of the United States, Hearings Before the Committee on the Judiciary, United States Senate. Jeffrey Jowell, The Growing International Consensus in Favour of Independent Judicial Appointment Commissions, in Judicial Appointments: Balancing Judicial Independence, Accountability and Appointments, Nirmalendu Rakshit, Judicial Appointments, Economic & Political Weekly, 39:27, July 2004, Osama Siddique, Across the Border, Seminar: A Monthly Journal, Special Symposium on 60 Years of the Indian Constitution ( ), Supreme Court Order, 18 th Amendment. 22. Terrorism & Parallel Court Structures Owen Fiss, The War Against Terrorism and the Rule of Law, Oxford Journal of Legal Studies, 26:2, 2006, Charles Kennedy, The Creation and Development of Pakistan s Anti- Terrorism Regime, , Part VI Comparative Constitutional Design 23. Parliamentarism Versus Presidentialism Walter Bagehot, The English Constitution (2 nd ed., 1873), ( The Cabinet ). Juan J. Linz, Presidential or Parliamentary Democracy: Does it Make a Difference?, in The Failure of Presidential Democracy (Johns Hopkins, 1994), Ludger Helms, Five Ways of Institutionalizing Political Opposition: Lessons from the Advanced Democracies, 2004, 22-30, 40-45, K. J. Newman, The Constitutional Evolution of Pakistan, International 8

9 Affairs, 38:3, 1962, Federalism: Origins, Typologies & Uses Alexander Hamilton, Federalist No. 9, in The Federalist Papers (1787) (at V. Dicey, Introduction to the Study of the Law of the Constitution (1885; 5 th ed., 1897), ( Parliamentary Sovereignty and Federalism ). Ronald L. Watts, Federalism, Federal Political Systems, and Federations, Annu. Rev. Polit. Sci. 1998, 1:117, Donald Horowitz, The Many Uses of Federalism, 55 Drake L. Rev. 953, 2007, Comparative Federalism: The Case of South Asia Douglas V. Verney, Federalism, Federative Systems, and Federations: The United States, Canada and India, Publius, 25:2, Spring 1995, Loiuse Tillin, Unity in Diversity? Asymmetry in Indian Federalism, Publius, 2006, Craig Baxter, Constitution Making: The Development of Federalism in Pakistan, Asian Survey, 14:12, Dec. 1974, Syed Jaffar Ahmed, Overview of the Constitution of Pakistan, PILDAT, Briefing Paper No. 17, August 2004, Excerpts from 18 th and 19 th Amendments re Provincial Autonomy. Part VII Prerogatives, Executive Powers & Emergencies 26. Prerogatives & Executive Powers Refer to John Locke, Of Prerogative, Session 5. Alexander Hamilton, The Real Character of the Executive, Federalist No. 69 in The Federalist Papers (1787), also available at Walter Bagehot, The English Constitution (2 nd ed., 1873), ( The Monarchy ). 9

10 Jenny S. Martinez, Inherent Executive Power: A Comparative Perspective, 115 Yale L.J. 2480, , Executives & Emergencies Arendt Lijphart, Emergency Powers and Emergency Regimes, Asian Survey, 18:4, April 1978, 401. Ferejohn and Pasquino, The Law of the Exception: A Typology of Emergency Powers, I. Con, 2:2, 2004, Anil Kalhan, Constitution and Extraconstitution : Emergency Powers in Postcolonial Pakistan and India, Emergency Powers in Asia: Exploring the Limits of Legality (Ramraj and Thiruvengadam, eds.) (Cambridge, 2010). Conclusion Is there an Islamic Constitutionalism? 28. The Modern Islamic State : Theocracy or Constitutional Democracy? Larry Cata Backer, God(s) over Constitutions: International and Religious Transnational Constitutionalism in the 21 st Century, 27 Miss. C. L. Rev. 11. Noah Feldman, Fall and Rise of the Islamic State (Princeton, 2008), excerpts. Haider Ala Hamoudi, The Death of Islamic Law, unpublished manuscript. 10