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Comparative Constitutional Law

Comparative Constitutional Law

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Published by CPLJ
Course taught by Kadambi, Kanwar, and Gupta
Course taught by Kadambi, Kanwar, and Gupta

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Categories:Types, Research, Law
Published by: CPLJ on Aug 07, 2011
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1
Comparative Constitutional Law (draft syllabus)Jindal Global Law SchoolRajeev KadambiVivek (Vik) KanwarArpita GuptaClass meeting on Tuesday: 2.30-5 pm.
Constitutional systems are increasingly converging. This convergence is marked by anon-going conversation between courts across the world. There is a free and open practice of 
“borrowing” taking place between constitutional systems. The course will
insightfully compareperspectives from prominent jurisdictions such as South Africa, United States, Germany, andIndia and more on selected themes. In doing so, it examines the common threads arising from thestructure and features of constitutions as well as substance of basic rights, to converge on thediscussion about the possibilities of post-national constitutions. This course is interested to ask whether there is a unity of meanings that can be gathered from this open exchange. And, whatare its consequences?The rapid rise of constitutional-cosmopolitanism is not without problems of context,identity, and coherence to name only a few. It defies (seen in a heuristic way) the horizontal axisof integration that traditionally joins the state and its people. There is a need to examine thefoundational undercurrents of a comparative constitutional law enquiry before advancing awholesale borrowing of foreign law. It is relevant to ask how it accounts for: culture and history,peculiarities of social structure, and multiple modernities?Kindly note, this is a rough draft of the syllabus as it may be undergo revision during thesemester. Students are free to come up with their own choices of readings. Students taking thiscourse will be required to do intensive reading to facilitate class discussions and analyticallyreflect on the debates arising from it. Evaluation for the course will be in the form of a take-home exam, the questions for which will be framed by students and the course instructorsworking together. In addition, students are expected to write a response to the debates in eachUnit--, due before the next class-meeting.Class participation: 10%Reflective essay: 50% (Submit essay by e-mail)End-semester Take-Home essay: 40%
Acknowledgment
I am grateful to Frank Michelman, Vlad Perju, Alec Stone Sweet, Arun Thiruvengadam, RichardAlbert for sharing their course-lists, and also perspectives on this course.
1.
 
Comparative Constitutional Law: Why Compare? What to Compare? WithWhom? (Rajeev)
 
2
 
Why Comparative Constitutional Law
in C
OMPARATIVE
C
ONSTITUTIONALISM
(NormanDorsen et al eds., Thomson: West, 2003), pp. 1-10 (to be shared via e-mail)
 
What is Comparative Constitutional Law
in C
OMPARATIVE
C
ONSTITUTIONAL
L
AW
(VickiC.Jackson & Mark Tushnet, ed., Foundation Press: 2006, 2
nd
ed.), pp. 141-154 (to beshared via e-mail)
 
Sujith Chowdhry,
Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation
, 74 Indiana Law Journal 819 (1999) (to beshared via e-mail)
 
Amartya Sen,
 Human Rights and Asian Values
, N
EW
R
EPUBLIC
33-40 (July 14-21, 1997)(to be shared via e-mail)
 
Randall Peerenboom,
 Beyond Universalism and Relativism: The Evolving Debates about 
―Values in Asia‖
, 14 Indiana International and Comparative Law Review 1 (2003) (to beshared via e-mail)Optional Reading:
 
Bilhari Kausikan,
 An East-Asian Approach to Human Rights
, 2 Buffalo Journal of International Law 263 (1996)
 
Vlad Perju,
The Authority of Foreign Law
(2010) (to be shared via e-mail)
2. Permeating Borders of Constitutional Law: Trans-National Judicial Dialogue(Rajeev)
 
Bruce Ackerman,
The Rise of World Constitutionalism
, 83 Virginia Law Review, 771-797 (1997)
 
Christopher McCrudden,
 A Common Law of Human Rights? Transnational JudicialConversations on Constitutional Rights
, 20 OJLS 499 (2000)
 
Ran Hirschl,
 
T
OWARDS
J
URISTOCRACY
:
 
T
HE
O
RIGINS AND
C
ONSEQUENCES OF THE
N
EW
C
ONSTITUTIONALISM
, (2004), pp. 1-16; 31-49 (to be shared via e-mail)
 
 Debate between Justices Breyer and Scalia on the use of foreign law
(ICON, 2007) pp. ?
 
Vlad Perju,
The Puzzling Parameters of the Foreign Law Debate
(2007 Utah L. Rev.)
 
India: Naz Foundation v. Government of NCT of Delhi, 160 Delhi Law Times 277(2009)
 
3
 
Madhav Khosla,
 Inclusive Constitutional Comparison: Reflections on India‘s Sodomoy
 Decision, American Journal of Comparative Law
(forthcoming) (to be shared via e-mail)Optional Reading:
 
Tom Ginsburg,
Confucian Constitutionalism? The Emergence of Constitutional Reviewin Korea and Taiwan
, 27 Law & Social Inquiry, 763-799 (2002)
3.
 
Will Formation in Constitutions (Vik)
 
Hannah Ardent, O
N
R
EVOLUTIONS
,
 
(1965) (chapter 1)
 
William E. Scheuerman,
 Revolutions and Constitutions: Hannah Arendt‘s Challenge to
Carl Schmitt 
10 Canadian Journal of Law & Jurisprudence 141 (1997)
 
Andras Sajo, Preferred Generations: A Paradox of Restoration Constitutions inC
ONSTITUTIONALISM
,
 
I
DENTITY
,
 
D
IFFERENCE AND
L
EGITIMACY
:
 
T
HEORETICAL
P
ERSPECTIVES
(to be shared by e-mail)
 
H. Kwasi Prempeh, “Africa’s Constitutional Revival: False Start or New Dawn?” 5
 International Journal of Constitutional Law
(2007).
 
France: On Constitutional Amendment Adopted by Referendum, 6 November 1962
 
South Africa: Certification of the Constitution of the Republic of South Africa, 1996 (4)SALR 744 (CC) (to be shared via e-mail)Optional Reading:
 
Tamir Moustafa, “Law and Resistance in
Authoritarian States: The Judicialization of Politicsin Egypt, in
 Rule By Law
 
 
Robert Barros,
Constitutionalism and Dictatorship: Pinochet, the Junta, and the 1980Constitution
(Cambridge, 2002).
4.
 
Constitutional Symbolism: Words, Symbols, and Sub-text (Vik)
 
Dieter Grimm,
 Integration by Constitution
, International Journal of Constitutional Law(I-CON), vol. 3(2-3):193-208 (2005)
 
Jũrgen Habermas,
 Remarks on Dieter Grimm‘s ‗Does Europe Need a Constitutoin‘ 
1European Law Journal 303 (1995)

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