This class highlights the challenges facing comparative constitutional law in its fundamental aim of creating legitimate and effective contemporary political regimes and systems. As a starting point, we will examine the difficulty of contemporary constitutions to embody a normative authority as the « highest law of the land » despite apparent conflicts of sovereignty in a globalized world. Building on the analysis of the birth and evolution of political institutions, covered in the first-year course, this second-year course will examine the underlying tensions within actual constitutional regulation, by exploring the concepts of constitutional identity, constitutional legitimacy, and constitutional efficiency in modern constitutional practice around the globe. We will question the pertinence of constitutionalism in this context, which is particularly important for students wishing to engage in effective careers of politics and government in an era of ever increasing contestation of State-centered regulation.
The first four lectures question the strengths and weaknesses of constitutional mechanisms which claim to implement or represent the identity of a nation or a people, both geographically at different levels of local power within the State (vertical separation of powers) and institutionally (horizontal separation of powers). This part of the
course will address contemporary constitutional issues raised within evolving longstanding democracies (notably the complexity of the link between identity and sovereignty) and those flowing from fourth wave democracies following the Arab Spring, as well as the evolution of constitutionalism in Latin America, in Africa, and in Asia. Special attention will be given to the notion of constitutionally regulated secularism in an increasingly non-secular world.
The second part of the course (lectures 5-8) confronts the ambiguity of long-term legitimacy of contemporary constitutions by analyzing their political and legal capacity to adapt to new forms of citizen participation and representation (electoral procedures, “elected monarchs”, representative government, evolution of political parties,
legislative process and scope, constitutional amendment, gender, minorities, lobbies, environmental issues...), and to both weak and strong forms of judicial review. In so doing we will consider how jurists across different systems (namely the United Kingdom, France, Ireland, Russia, United States, Germany, South Korea, India) use different methods of interpretation (textual, teleological, historical, proportional...) to implement similar regulations (review and possible sanction of governmental action, guarantee and limitation of explicit and implicit rights).
The final four sessions (lectures 9-12) will then challenge the classical concept of the efficiency of modern constitutions, confronted with the expanding role of international law and supranational judicial bodies, notably regarding the adjudication and governmental regulation of third and fourth generation human rights. Indeed, current challenges to the efficiency of constitutional principles by regional law (European Union, Council of Europe) and international law, as well as expanding affirmations of environmental and digital constitutionalism, exacerbate the inherent ambiguities of ensuring the guarantee of fundamental rights in an age of information technology, and global terrorism.
Depending on availability, a QPC hearing before the French Constitutional Council in Paris will enable students to observe an interpretive method in practice, and the preparation and class interaction on topics concerning the annual Political Institutions conference will illustrate the influence of comparative constitutional law on modern constitutional design.
To validate the course, the student is expected to pass the following assignments:
1/ 2/3 OF THE FINAL GRADE is comprised of THREE EQUAL MARKS OBTAINED IN SEMINARS:
1.1. ONE 8 MINUTE INDIVIDUAL ORAL PRESENTATION OF A WRITTEN ESSAY OR TEXT COMMENTARY, followed by 15-20 minutes of
questions by the seminar instructor = 1/3 of the seminar grade
1.2. THE MEAN GRADE OF DEBATE PARTICIPATION IN EACH SEMINAR = 1/3 of the seminar grade
1.3 ONE MIDTERM EXAMINATION = 1/3 OF THE SEMINAR GRADE
o Written essay or case or text commentary; same format as for the weekly individual papers (3 hours, open book and notes)
2/ 1/3 OF THE FINAL GRADE = FINAL EXAMINATION (ESSAY OR TEXT OR CASE COMMENTARY, 3 HOURS, open book and notes)
The course will be divided into 12 two-hour lectures and 12 two-hour seminars. Power points and course outline will be available on GOOGLE DRIVE prior to each lecture. Power points, readings, and seminar documents should be studied before each lecture, allowing students to assimilate the lectures with a CRITICAL analysis.
Weekly seminars will follow the lectures, and include both practical (case studies and commentaries) and theoretical (essays and debates) exercises. The workload has been designed to allow students to master the key questions and key terms on the seminar syllabus, as well as thoroughly comprehending each of the seminar documents.
REQUIRED READINGS FOR THE LECTURES AND SEMINARS ARE ALL ON GOOGLE DRIVE, and we highly encourage students to read them each week, not only the week in which they are assigned a given exercise.
This class builds on the level one class on Political Institutions and Comparative Constitutional Law. You must therefore review any points not clearly understood last year before the class. If you are given a text to comment, that was already covered in the level one class, you will therefore be expected to add the concepts and cases learned in the second level class when constructing your argumentation. The texts to comment in seminars are aimed at preparing you for the length of a text you might comment in the final exam. In each essay, you must make sure to demonstrate that you have mastered both material from the level one and the level two class.
At the end of the course, the student is expected in his/her final examination to:
1. Be able to present a critical analysis of current doctrinal developments and jurisprudence regarding the conception, implementation, and efficiency of contemporary constitutional provisions.
2. Be able to build on said analysis to propose precise measures of constitutional design for both longstanding and new political regimes.
3. Have mastered argumentative techniques as implemented in essay form (dissertation) and in text commentary, and in so doing referring to class lectures, readings, and seminar texts.
G.Jacobsohn, The formation of constitutional identities, Comparative Constitutional Law, T. Ginsberg and R. Dixon eds., Edward Elgar. 2011.129
J.S. Sutton, 21st Century Federalism: A View from the States, 46 HARV. J. L. & PUB. POL'y 31, 1-12 (2023)
S. Boyron, Semi-presidentialsim: The Rise of an accidental' model, The Oxford Handbook of Comparative Administrative Law, Peter Cane, Herwig C. H. Hofmann, Eric C. Ip, and Peter L. Lindseth, eds (2020)
Ran Hirschl and Ayelet Shachar, Competing Orders? The Challenge of Religion to Modern Constitutionalism, The University of Chicago Law Review, Vol. 85, No. 2 (March 2018), pp. 425-456
H. Landemore, «The principles of Open Democracy» (Chapter 6) in Open Democracy: Reinventing Popular Rule for the Twenty-First Century, Princeton University Press (2020)
M. Troper, The Survival of Sovereignty, Sovereignty in Fragments, H. Kalmo and Q. Skinner, eds, Cambridge. 2011. 132-150