JJUA55269U Comparative Constitutional Rights Law
Should governments be allowed to shoot down a plane carrying terrorists? Should judges be able to tell them to do so? Can bakers refuse to bake a cake for a homosexual couple? How can courts intervene? What role do courts play in the context of social inequality?
The comparative constitutional rights course seeks to answer these questions by looking at the approaches of several different constitutional courts from around the world: including the US, South Africa, Israel and Europe. The course considers the meaning of particular constitutional rights and their significance in theory and in practice, and the efficacy of the legal institutions esigned to protect them.
Several specific substantive issues (absolute rights, freedom of speech, privacy, and equality, including minority rights) will be studied in depth to illustrate the complex interplay between theory, legal concepts and procedure, and between legal and non-legal sources of protection. It will draw on international human rights law, but will not be confined to it. The course as a whole will aim to provide the opportunity for in-depth comparative study, during which the appropriateness and utility of comparative legal techniques will be considered. There is no expectation that those taking the course will have taken any other course previously.
Themes: right to life (death penalty, abortion, terrorism), right to freedom of expression (hate speech, subversive speech, obscenity), equality (minority rights, socio-economic rights, religion, same sex marriage)
The questions addressed include :
- The role of judiciaries in interpreting and expanding constitutional and human rights. What role judges claim or should claim in relation to the protection of minorities, religion and the state?
- The roles of judiciaries vis-a-vis the government and legislature, as well as their role in maintaining a relationship with international institutions and in developing and acting in a ‘community of states’. Do judges consider themselves actors in the international legal order? Are judges isolating the state from other jurisdictions or are they engaging with them?
- Different perceptions of the judicial role. Techniques judges use to assert their roles. Distinguishing law and politics.
- The use and abuse of comparative and international law in national constitution-making and adjudication.
The aim is to learn the anglo-american method of studying law and learn from the comparative approach. Students will be expected to read judgments in advance and encouraged to contribute with their knowledge of constitutional from their own jurisdiction.
- Become familiar with a set of questions and different approaches to human rights interpretation, including how Danish approaches to rights differ from other jurisdictions.
- Be aware of the latest developments relating to constitutional rights protections in Denmark and in other countries
- Identify the central issues and challenges facing constitutional judges, such as power grab from the government, rights limitations for security and other purposes, and digitialization.
- Critically read and analyze both theoretical and empirical literature on constitutional rights.
- Apply the knowledge built during the course to real life examples (Eg gay cake case, current cases before constitutional and European courts etc).
The materials will be provided online: they include judicial decisions and relevant case notes or comments analysing these decisions. In addition, a film will be played to help students think about how judges make decisions in rights cases.
The list of cases may change prior to August 2020, depending on new developments.
- Case law analysis with oral presentations and written reaction papers or essays, where students reflect on cases of constitutional rights
- Film reflecting on judicial function
In addition, to encourage the reflection on the ideas presented in class, students will be asked to investigate the topic as it relates to their own jurisdiction refer to relevant academic and legal (Case-law) literature.
- 15 ECTS
- Type of assessment
- Written assignmentIndividual written assignment
- Marking scale
- 7-point grading scale
- Censorship form
- No external censorship
- Exam period
submission date: January 20, 2021
submission date: February 26, 2021