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Comparative Con Law Outline 2009

Comparative Con Law Outline 2009

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Published by The Lawbrary
Comparative Constitutional Law: US, Germany, South Africa, Canada, India
Comparative Constitutional Law: US, Germany, South Africa, Canada, India

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Published by: The Lawbrary on Jun 25, 2009
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Comparative Con Law 2009
Major issues:1.Understand how and why a particular jurisdiction answers a question the way it does2.What if, anything, can the US learn from these jurisdictions, in light of relevant differences b/t them? When, if ever,should the US use foreign law?
Modes of Comparison
Originalist/genealogica l:1.Useful comparison is possible when the legal systems share many of the same constitutional starting points.Similarly situated decision makers, facing parallel questions, can be an important source of insight. It focuseson the internal logic of particular legal principles or the relationship b/t those principles or specific rules.
Prob: the Supreme Court’s use of originalism is often embodied in their interpretations. Thus, such insightsmight have little relevance unless they have the strongly backwards-looking approach that focuses on the proper meaning to be given to principles already embodied in the text or the originalist understanding of theConstitution.3.Prob: Legitimacy- the more that value judgments are called for, the more difficult it is to rely on outside sourcesof justification
Deliberative :1.Sort of like secondary sources; have added rhetorical value b/c analysis comes from other learned scholars2.Legitimacy: based on the existence of real-world consequences, reasons and experience3.Persuasive value: public will accept4.Posner: we have to be worried about rhetoric that isn’t quite right on all fours
Empirical :1.Empirical evidence can usually support both sides2.Context is very important3.Have to be wary of mixing up causation with correlation and possibility vs probability
Moral-cosmopolitan : a consensus on a value judgment might be worth following
Posner/Sunstein and Independence : comparing allows US courts to gain insights about the moral conclusions of a large number of relatively independent constitutional decision makers who have access to diff information.Thus if they all arrive at the same morally correct answer, the collective action decision reached will reveal atruth rather than reflect one entity’s idiosyncratic preferences.a.Requirements:1)Independent2)Moral judgments3)Against similar backgrounds or conditions b.If two people are answer the same question that has two possible outcomes, and each has a greater than50% chance of being correct, then the probability of reaching the right answer increases as the groupincreases.c.Juries: each juror has access to private information as well as the public trial information. If they all makedecisions based in part on both the private and public information, then the decision reached is more likelyto be correct as the number of jurors increases.
Waldron and Interdependence : if the global community reaches a consensus after having deliberated and gonethrough iterative processes of refining and re-testing decisions, then such conclusions should have the equalforce of scientific conclusions that have undergone testing and re-testing. Encourages a rich marketplace of ideas whereby sound ideas win out after having been implemented successfully. Coercive compliance with theconsensus isn’t the same thing.
Reflective : see how things have changed by examining a small subset of like-minded countries
Background on the countries we’ll study:
A.Canada1.Provincial trial ct makes decision; gets appealed to the SC of Canada2.SC of Canada = court of general appeal so it can hear c/l cases, cases in equity as well as federal andconstitutional q’sB.India1.21 provincial High Courts can hear constitutional questions; have original jurisdiction as well2.Supreme Court of India has 30+ judges who sit in groups of 3 (Division Bench) for most cases, w/ groups of 5to hear major cases (Constitutional Bench)3.SCI has original (intra-govt), appellate and advisory jurisdiction; hears constitutional as well as non-constitutional questions.1
Comparative Con Law 2009C.Germany1.Has a Constitutional Court which only hears constitutional issues2.Can hear cases in the abstract (ie before any injury has occurred) or after injury has occurred
(Contrast w/ the Kelsen court: before a law went into effect, the court would be asked to look at itsconstitutionality; once passed, no private party could challenge)D.South Africa1.SA Constitutional Court: so limited jurisdiction; can hear abstract questions (almost never does) but mostlyconcrete questions.2.No discussion of standing or advisory opinions but its being pushed by the govt to have these issues settled
The Death Penalty and Comparative Engagement: Case Studies
 Bu rns
(South Africa, 1995)
Relevant provisions: Sec 11(2) of the Interim Constitution: No person shall be subject to torture of any kind,whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or  punishment.B.Sec 9: Everyone shall have the right to life.C.Sec 10: Every person shall have the right to respect for and protection of his or her dignityD.Issue: in light of constitutional provisions on a seemingly unqualified right to life, the right to dignity and the right to be free from cruel, inhuman or degrading punishment, is the death penalty constitutional?E.Holding: No it’s not constitutionally justifiable. South Africa, b/c of its unique history, is committed to not exactingfull retribution and under a Kantian version of human dignity, deterrence is not a valid enough reason.F.Background history:1.African National Congress is in power, lead by Mandela.2.This was a deliberated transition from an apartheid system thus the concessions b/t the outgoing white majorityand incoming black majority; an interim constitution was drafted w/ certain provisions that must be in the final
This is about the interim constitution. The issue of the DP was not decided upon (out of fear that it would beused against the outgoing pro-apartheid govt) and it was well known that the issue was being punted to thesupreme court.G.Relevant constitutional provisions:
11(2): prohibits cruel, inhuman or degrading punishment (
to be read disjunctively
9: everyone has the right to life (
 seems to be an unqualified right, unlike the US and due process that leads torights violations
)3.10: everyone has the right to dignity
33(1): a depravation of rights is permissible if it’s “reasonable” or “justifiable in an open and democraticsociety.” Requires a 2-step analysis: (now Sec 36)a.Is there a right?
If so, can the limitation be justified in an open and democratic society? Use enumerated factors.
c.This seems sort of like varying levels of scrutiny that constrain discretion; here the inquiry is holistic.
H.Reliance on foreign law?1.Cruel and unusual:
Customary international law, international agreements and international tribunals
moral-cosmo reliance
Cites Brennan for the proposition that dignity is at the core of the prohibition on cruel and unusual punishment
Citing Germany’s holding that capital punishment is a serious impairment of human dignity
deliberative(Kant would say that you have to treat people as ends unto themselves; can’t treat them as objects)2.Right to life?
There’s no international consensus
the DP b.But there is a moral-cosmo consensus that life is important; thus state has to meet a very high bar to justifythe DP if life is so importantI.Analysis:1.Framework: limitations on fundamental rights have to be justified under Section 33a.Is there a right?
Purpose must be reasonable and necessary in a democratic society2
Comparative Con Law 2009
Weigh competing values by balancing. Proportionality will turn on the importance of the govt objectiveAND its constitutional grounding2.Balancinga.Deterrence, prevention and retribution vs alternative punishments; factors that make the DP cruel, inhumanand degrading; destruction of life; annihilation of dignity; elements of arbitrariness; inequality and possibility of error in the judgment b.You don’t forfeit any constitutional rights just by being a criminal—so the right to life and dignity are notautomatically forfeited by a convicted murderer.
Yes, imprisonment does impair dignity; the fact that their freedom has been curtailed doesn’t legally justifyfurther curtailment (relative to whatever crime they committed)d.The right to life and dignity are the most important of all human and rights. Thus these two are valuedabove all else. These values are not upheld when the state objectifies murderers by the DP, in the hope thatit will deter others.e.Balancing:1)Costs: Loss of dignity and life (most important con/HR values) against
Possible Benefits: retribution (Court says this cannot by definition outweigh dignity/life) anddeterrence (which is a valid reason at this time)f.Conclusion: costs are too high.3.How is dignity implicated?1.Under Kant, deterrence isn’t a valid reason b/c can’t use people as a means to an end.2.Retribution might be ok under Kant but isn’t good enough given the history of the region and the apartheid-era use of retribution
 Bachan Singh v Punjab
(India 1982)
A.Facts: Singh was tried and convicted of murder. He’s been sentenced to the DP and now argues that the penal code provision calling for the DP is unconstitutional under Article 19 of the Constitution.B.Issue: Does the DP violate the Constitution? If not, does the sentencing procedure violate the Constitution?
Held: The DP does not violate Art 19(1). The sentencing procedures don’t violate Art 21.D.Test:1.Does the impugned law, in its pith and substance, deal w/ any of the fundamental rts conferred by A 19(1)?2.If so, does it abridge or abrogate any right?3.If not, then is the direct and inevitable effect of the impugned law to abridge those rights?4.Next:a.Remote or collateral effects on those rights don’t satisfy the test b.If the answer is yes to any of those questions, the impugned law, in order to be valid, must pass the test of reasonableness under A 19.c.But if the impact on the rights are merely incidental, indirect, remote or collateral or depend on factorswhich may or may not come into play, the anvil of A 19 is not available to judge its validity.
1.Pith and Substance: does the law aim to burden a right? Is the purpose of the law to burden the right? Is thelaw designed to impose a burden on the penumbral rights associated here?2.Effects Test: is the direct and inevitable impx a burden on the right
This is like
Yick Wo/Washington v Davis
 —disparate impx are enough to burden b.Or explicit classification that is the burdenF.Is Art 19 violated? No.
Test: P’s burden to rebut presumption of constitutionalitya.Does the impugned law, in its pith and substance, deal w/ any of the A19 rights? No. b.If not, is the direct and inevitable effect to abridge those rights? No.1)The deprivation of freedom is not a direct and inevitable consequence of the penal law.2)The deprivation is merely incidental to the order of conviction.
You get tried for murder 
it’s not automatic that you’ll get the DP. Plus the law provides for exceptional circumstances, so it’s not a direct or inevitable outcome.4)Weird argument.2.A19 enumerates a bunch of rights but the claimant is arguing something of a penumbra: that the general right tolife is a priori in order to give rise to the more specific enumerated rights. It’s not specifically discussed thoughat this time, there is an understanding that there are more general rights.
Assuming that that the Pith and Substance or FX test is satisfied and you move on to the reasonableness inquiry:a.The legislature is not required to choose the least severe penalty possible as long as it’s not cruellyinhumane or disproportionate to the crime.3

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