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ADRO 1245A - CONSTITUTIONAL DESIGN

Type d'enseignement : Lecture alone

Semester : Autumn 2017-2018

Number of hours : 24

Language of tuition : English

Pre-requisite

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Course Description

This course considers how Constitutions gain and maintain authority as highest law of the land. Building on the structure of political institutions and comparative constitutional law (level 1 course), this second year course examines fundamental issues of constitutional identity, legitimacy, and efficiency. The first four lectures and debates cover contemporary constitutional issues raised by fourth wave democracies following the Arab Spring (Tunisia, Egypt, Libya will be recurrent but non-exclusive examples), as well as by non-democratic States (China, Russia). We will critically examine the usefulness of Constitutions in reflecting the identity of a nation or a people, both normatively and geographically. Special attention will be given to the notion of secularism in a growingly non-secular world. The second part of the course will consider how jurists across different systems have approached the problem of long-term legitimacy of the adopted Constitution. We will examine theoretical and empirical data concerning the influence of participation (namely gender, tribal, minority, electoral process and political parties) and of external actors and transitional justice on the drafting process, as well as designing procedures of amendment and judicial review capable of adapting and interpreting the Constitution according to the legal order it has established. The final four sessions will compare issues of Constitutional efficiency in regimes of rights adjudication (namely, freedom of expression, right to property, and equality), as well as particular challenges of terrorism law and international law. A hearing before the French Constitutional Council in Paris will enable students to observe an interpretive method hands on, and a conference-debate with a guest expert will illustrate the practical aspects of institutional building in divided societies.

Teachers

ALLEN-MESTRALLET, Gretchen (PhD. Lecturer)

Pedagogical format

Twelve two-hour classes will be divided into one hour of lecture, followed by a one-hour debate conducted by the lecturer on weekly readings.

Course validation

To validate the course, the student is expected to: - Participate with critical questions in weekly class debates and case studies (33% of final grade) ; - Pass one mid-term paper on any of the first six class themes or debate questions: (33% of final grade) : o Essay (introduction, critical issue, thesis, apparent outline, conclusion): between 3,000-3,500 words, Times New Roman, double-spaced, plus footnotes, at least 10 bibliographical references (Chicago-style citation) ; o Proposed topic, critical issue and outline must be presented to Prof. Allen before September 29 for approval ; o Paper due on October 13 via gretchen.allenmestrallet.scpo@analyse.urkund.com ; - Pass one three-hour written final exam which shall be open-book, no computers. (Case study or essay= 33% of final grade).

Required reading

G.Jacobsohn, “The Formation of Constitutional Identities”, Comparative Constitutional Law, T. Ginsberg and R. Dixon (eds.), Edward Elgar. 2011.129

Additional required reading

  • S. Alberts, C. Warshaw, and B.R. Weingast, « Democratization and Countermajoritarian Institutions », Comparative Constitutional Design, T. Ginsberg, ed, Cambridge University, 2013.69
  • A. Lijphart, Patterns of Democracy 2012.174 (The Federal-Unitary and Centralized-Decentralized Constrasts)
  • R. Hirschl, “The Political Economy of Constitutionalism in a Non-Secularist World”, Comparative Constitutional Design, T. Ginsberg, ed, Cambridge University, 2013.164
  • J. Elster, “Clearing and Strengthening the Channels of Constitution making”, Comparative Constitutional Design, T. Ginsberg, ed, Cambridge University, 2013.15