LAW 637 - Comparative Constitutional Systems

Constitutional Convergence: US, European and Commonwealth approaches to human rights law. The course examines similarities and differences in the constitutional adjudication of human rights controversies in selected jurisdictions. Through a series of case studies, the course seeks to illuminate two discrete fields: (a) the approach to judicial nullification of statutes (or, alternatively, reading them down or otherwise interpreting them in light of human rights, or declaring their inconsistency); (b) making the public-private distinction (attributing to acts of a non-state actor the character of “publicness” such that the actor bears the burden of observing rights); (c) rights horizontality (the extent to which private actors are controlled by constitutional norms in their dealings with each other); (d) pre-legislative means to prevent rights infringing laws being enacted. (2) Second, a comparative study of the substance of particulare rights. These rights will be– (a) freedom of expression, in the context of hate propaganda and offensive speech; (b) freedom of religion, in the context of (i) its interface with anti-discrimination law (ii) religious symbolism in the public sphere and (iii) the question of making exceptions from general law to facilitate free exercise; (c) liberty in the sense of personal autonomy. The comparative focus of the course is the jurisprudence of the US, Canada, the European Court of Human Rights, South Africa, Australia, NZ and certain Pacific states.