Comparative Constitutional Law (LAW 512)

2020 Fall
Faculty of Arts and Social Sciences
Law(LAW)
3
10
Oya Yeğen zoyayegen@sabanciuniv.edu,
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English
Doctoral, Master
--
Formal lecture,Seminar
Discussion based learning
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CONTENT

This course explores the similarities and differences between written constitutions than stem from diverse legal and cultural backgrounds. While the chosen constitutions may differ according to the instructor, the emphasis is on making critical comparisons between the different constitutional systems, including substantive areas such as: Judicial Review; Individual Freedoms; Separation of Powers; Centralization of Decision Making; Pluralism; and Protection of Democratic Principles.

OBJECTIVE

The purpose of this course is to introduce students the conceptual and theoretical foundations of constitutional law from a comparative perspective. By the end of this course, students should have a solid understanding of different constitutional systems, be able to analyze how constitutions functions in different settings, identify the role of constitutional law in effective government and have a full grasp of contemporary constitutional developments in the world today.

LEARNING OUTCOMES

  • Demonstrate knowledge on varieties of institutions of constitutional design and processes of constitution-making
  • Critically evaluate how different legal systems approach different legal issues and apply concepts and ideas to contemporary events
  • Demonstrate knowledge about different topics/issues related to the field of comparative constitutional law
  • Apply theoretical knowledge and develop writing and communication skills.
  • Critique readings, analyze evidence and make informed arguments

PROGRAMME OUTCOMES


1. Develop and deepen the current and advanced knowledge in the field with original thought and/or research and come up with innovative definitions based on Master's degree qualifications 4

2. Conceive the interdisciplinary interaction which the field is related with ; come up with original solutions by using knowledge requiring proficiency on analysis, synthesis and assessment of new and complex ideas. 4

3. Evaluate and use new information within the field in a systematic approach. 4

4. Develop an innovative knowledge, method, design and/or practice or adapt an already known knowledge, method, design and/or practice to another field; research, conceive, design, adapt and implement an original subject. 4

5. Critical analysis, synthesis and evaluation of new and complex ideas. 4

6. Gain advanced level skills in the use of research methods in the field of study. 3

7. Contribute the progression in the field by producing an innovative idea, skill, design and/or practice or by adapting an already known idea, skill, design, and/or practice to a different field independently. 3

8. Broaden the borders of the knowledge in the field by producing or interpreting an original work or publishing at least one scientific paper in the field in national and/or international refereed journals. 1

9. Demonstrate leadership in contexts requiring innovative and interdisciplinary problem solving. 2

10. Develop new ideas and methods in the field by using high level mental processes such as creative and critical thinking, problem solving and decision making. 3

11. Investigate and improve social connections and their conducting norms and manage the actions to change them when necessary. 2

12. Defend original views when exchanging ideas in the field with professionals and communicate effectively by showing competence in the field. 4

13. Ability to communicate and discuss orally, in written and visually with peers by using a foreign language at least at a level of European Language Portfolio C1 General Level. 5

14. Contribute to the transition of the community to an information society and its sustainability process by introducing scientific, technological, social or cultural improvements. 2

15. Demonstrate functional interaction by using strategic decision making processes in solving problems encountered in the field. 1

16. Contribute to the solution finding process regarding social, scientific, cultural and ethical problems in the field and support the development of these values. 3


1. Develop the ability to use critical, analytical, and reflective thinking and reasoning 5

2. Reflect on social and ethical responsibilities in his/her professional life. 3

3. Gain experience and confidence in the dissemination of project/research outputs 4

4. Work responsibly and creatively as an individual or as a member or leader of a team and in multidisciplinary environments. 4

5. Communicate effectively by oral, written, graphical and technological means and have competency in English. 5

6. Independently reach and acquire information, and develop appreciation of the need for continuously learning and updating. 5


1. Develop a thorough knowledge of theories, concepts, and research methods in the field and apply them in research design and data analysis. 4

2. Assess the impact of the economic, social, and political environment from a global, national and regional level. 4

3. Know how to access written and visual, primary and secondary sources of information, interpret concepts and data from a variety of sources in developing disciplinary and interdisciplinary analyses. 5


1. Analyze historical and contemporary developments in Europe, specifically of the European integration process, from a multi-disciplinary perspective. 3

2. Grasp the main dynamics of the European order, politically, historically and economically. 3

3. Explain the European integration process and the EU's decision-making procedures and it's institutions. 3


1. Analyze historical and contemporary developments in Europe, specifically of the European integration process, from a multi-disciplinary perspective. 3

2. Grasp the main dynamics of the European order, politically, historically and economically. 3

3. Explain the European integration process and the EU's decision-making procedures and it's institutions. 3

ASSESSMENT METHODS and CRITERIA

  Percentage (%)
Final 15
Midterm 15
Assignment 20
Term-Paper 30
Participation 20

RECOMENDED or REQUIRED READINGS

Readings

? Russell Hardin. 1989. ?Why a Constitution?? eds. Bernard Grofman et al. in The Federalist Papers and the New Institutionalism (Representation Vol 2).
? Stephen Holmes. 2012. ?Constitutions and Constitutionalism,? The Oxford Handbooks of Comparative Constitutional Law, Michel Rosenfeld and András Sajó (eds.)
? Tim Horley, Anne Meng and Mila Versteeg ?The World Is Experiencing a New Form of Autocracy,? the Atlantic. March 1, 2020.
? Barry Weingast. ?The Political Foundations of Democracy and the Rule of Law.? , 1997, 91 (2): 245-263.
? Mila Versteeg et. al. 2020 ?The Law and Politics Of Presidential Term Limit Evasion,? Columbia Law Review Vol. 120, No. 1, pp. 173-248
? Ran Hirschl. 2014. ?How Universal is Comparative Constitutional Law,? Comparative Matters: The Renaissance of Comparative Constitutional Law, pp. 192-223.
Grad:
? Ran Hirschl. 2014. ?Case Selection and Research Design in Comparative Constitutional Studies,? Comparative Matters: The Renaissance of Comparative Constitutional Law, pp. 224-281.
? Zachary Elkins, Tom Ginsburg and James Melton. 2009. The Endurance of National Constitutions, Cambridge University Press, pp. 47-64.
? Juan Linz, "The Perils of Presidentialism," Journal of Democracy, Vol. 1, no. 1 (Winter 1990), pp. 51-69.
? John M. Carey ?Presidential vs Parliamentary Government? In: Ménard C., Shirley M.M. (eds) Handbook of New Institutional Economics. Springer, Berlin, Heidelberg
? Ergun Özbudun, ?Constitutional Law?, Introduction to Turkish Law, Tuğrul Ansay and Don Wallace Jr., eds, Kluwer Law International, 6th Ed., 2011, pp. 19-50.
? Arend Liphart. 2008.?Presidentialism and Majoritarian Democracy: Theoretical Observations.? In Thinking About Democracy: Power-Sharing and Majority Rule in Theory and Practice, Arend Liphart. Routledge.
? Matthew S. Shugart and John M. Carey. Presidents and Assemblies: Constitutional Design and Electoral Dynamics (Cambridge University Press, 1992): Chapter 1, 2 and 3.
? Recommended: Scott Mainwaring and Matthew Shugart ?Juan Linz, Presidentialism, and Democracy, A Critical Appraisal,? Comparative Politics, Vol. 29, No. 4 (Jul., 1997), pp. 449-471
? Matthew S. Shugart and John M. Carey. Presidents and Assemblies: Constitutional Design and Electoral Dynamics (Cambridge University Press, 1992): Chapter 8.
? Ronald J. Krotoszynski, Jr. 2011.?The separation of legislative and executive powers,?. Comparative Constitutional Law, Tom Ginsburg and Rosalind Dixon (eds.)
? Recommended: Bertil Emrah Oder. 2017. ?Turkey?s ultimate shift to a presidential system: the most recent constitutional amendments in details?, Constitutionnet, January 31. http://constitutionnet.org/news/turkeys-ultimate-shift-presidential-system-most-recent-constitutional-amendments-details
? José Antonio Cheibub, Zachary Elkins and Tom Ginsburg. ?Beyond Presidentialism and Parliamentarism?. British Journal of Political Science, 44(3), 515-544.
? Petra Stykow. 2019. The devil in the details: constitutional regime types in post-Soviet Eurasia, Post-Soviet Affairs, Vol.35, no. 2, pp. 122-139
? Thomas O. Hueglin and Alan Fenna. 2005. Comparative Federalism: A Systematic Inquiry. University of Toronto Press. Chapter 2 and 3.
? Barry R. Weingast. 2005. ?The Performance and Stability of Federalism: An Institutional Perspective.? In Handbook of New Institutional Economics. Eds. Menard, Claude, and Marry M, Shirley. Dordrecht: Springer, 149-172.
? Sujit Choudhry. 2014. ?Classical and post-conflict federalism: Implications for Asia,? in Comparative Constitutional Law in Asia, Rosalind Dixon and Tom Ginsburg (eds.) Edward Elgar Publishing
? Juan Fernando Jaramillo Perez. 2002. ?Colombia?s 1991 Constitution: A rights Revolution? in Detlef Nolte and Almut Schilling-Vacaflor (eds.) New Constitutionalism in Latin America: Promises and Practices. Routledge: 2002. (skim)
? Javier Couso. ?The `economic constitutions? of Latin America: between free markets and socioeconomic rights? in Comparative Constitutional Law in Latin America Rosalind Dixon and Tom Ginsburg (eds.). Edward Elgar Publishing.
? Cass R. Sunstein 2001. ?Social and Economic Rights? Lessons from South Africa? Designing Democracy: What Constitutions Do, Chp.10, Oxford University Press.
? Christian A. Davenport. 1996. "Constitutional Promises and Repressive Reality: A Cross- National Time- Series Investigation of Why Political and Civil Liberties are Suppressed " Journal of Politics 58 (3): 627-54.
? Adam S. Chilton and Mila Versteeg. 2016. ?Do Constitutional Rights Make a Difference?,? American Journal of Political Science, Vol. 60, No. 3, pp. 575?589

? John Ferejohn, 1998. ?Independent Judges, Dependent Judiciary: Explaining Judicial Independence.? Southern California Law Review 72.2-3: 353-384.
? Tom Ginsburg. 2003. Judicial Review in New Democracies: Constitutional Courts in Asian Cases. Cambridge, UK: Cambridge University Press. Intro and Chapter 1
? Hootan Shambayati and Esen Kirdiş. 2009. ?In Pursuit of ?Contemporary Civilization?: Judicial Empowerment in Turkey? Political Research Quarterly, Vol 62, Issue 4, pp. 767 ? 780.
? Tom Ginsburg and Mila Versteeg. 2014. ?Why Do Countries Adopt Constitutional Review?,? 30 Journal of Law, Economics and Organization 587.
? Aylin Aydın. 2013. ?Judicial Independence across Democratic Regimes: Understanding the Varying Impact of Political Competition,? Law & Society Review, Volume 47, Number 1.
? John Ferejohn and Pasquale Pasquino (2004) "The Law of the Exception: a Typology of Emergency Powers," 2 Int'l J. Const. L. 210.
? Mert Arslanalp & T. Deniz Erkmen (2020): Repression without Exception: A Study of Protest Bans during Turkey?s State of Emergency (2016-2018), South European Society and Politics
? Giorgio Agamben-State of Exception (University of Chicago Press : 2005), pp. 1-41.
? Recommended: Tom Ginsburg and Mila Versteeg. 2020. ?The Bound Executive: Emergency Powers During the Pandemic?. Virginia Public Law and Legal Theory Research Paper No. 2020-52, U of Chicago, Public Law Working Paper No. 747.
? Donald Lutz. 1994. ?Toward a Theory of Constitutional Amendment, ?The American Political Science Review , Jun., 1994, Vol. 88, No. 2.
? Gabriel L. Negretto, ?Replacing and Amending Constitutions: The Logic of Constitutional Change in Latin America.? Law & Society Review, vol. 46, no. 4, 2012, pp. 749?779.
? Sanford Levinson, ?How Many Times Has the United States Constitution Been Amended?.? In Sanford Levinson, ed., Responding to Imperfection: The Theory and Practice of Constitutional Amendment, pp. 13-36.
? George Tsebelis 2020. ?Constitutional Rigidity Matters: A Veto Players Approach? https://sites.lsa.umich.edu/tsebelis/wp-content/uploads/sites/246/2020/07/Constitutional-Rigidity-Matters.pdf
? Gabriel L. Negretto. 2017. ?Constitution-Making in Comparative Perspective,? Oxford Research Encyclopedia of Politics.
? Tom Ginsburg, Zachary Elkins, and Justin Blount. 2009. ?Does the Process of Constitution-Making Matter?,? Annual Review of Law and Social Science. 5: 201?23
? Felix Petersen and Zeynep Yanasmayan. 2020. ?Explaining the Failure of Popular Constitution Making in Turkey (2011?2013)? in The Failure of Popular Constitution-Making in Turkey, Cambridge University
? Gabriel L. Negretto ?Democratic constitution-making bodies: The perils of a partisan Convention? I?CON (2018), Vol. 16 No. 1, 254?279
? Todd A. Eisenstadt, A. Carl LeVan and Tofigh Maboudi. 2015. ?When Talk Trumps Text: The Democratizing Effects of Deliberation during Constitution-Making, 1974?2011? American Political Science Review Vol. 109, No. 3
? Andrea Bonime-Blanc. 2010. Constitution Making and Democratization: The Spanish Paradigm, Miller, Laurel, and Louis Aucoin. Framing the State in Times of Transition: Case Studies in Constitution Making. Washington, D.C: United States Institute of Peace Press, 2010.
? Peter Siavelis. 2016. ?Crisis of Representation in Chile? The Institutional Connection? Journal of Politics in Latin America, Vol. 8, 3, pp. 61?93.
? Arendt Lijphart, (1992). Democratization and Constitutional Choices in Czecho-Slovakia, Hungary and Poland 1989-91. Journal of Theoretical Politics, 4(2), 207?223.
? Michael Albertus and Victor Menaldo. 2014. ?Dealing with Dictators: Negotiated Democratization and the Fate of Outgoing Autocrats?, International Studies Quarterly, 58, pp. 550-565
? Sujit Chaudhry, ?Introduction? in The Migration of Constitutional Ideas. Cambridge: Cambridge University Press: 2007.
? Andrew Arato. 2009. Constitution Making Under Occupation The Politics of Imposed Revolution in Iraq. Columbia University Press.
? Kristi Samuels. 2006. Post-Conflict Peace-Building and Constitution-Making Chicago Journal of International Law. Vol 6, No. 2.
? Arend Lijphart, ?Constitutional Design for Divided Societies,? Journal of Democracy, Volume 15, Number 2, April 2004, pp. 96-109.
? Jennifer Widner. ?Constitution writing and conflict resolution,? The Round Table: The Commonwealth Journal of International Affairs, 2005, 94: 381, pp. 503-518.
? David Landau. 2013. ?Abusive Constitutionalism? UC Davis Law Review.
? William Parlett. 2012. ?The Dangers of Popular Constitution-Making,? Brooklyn Journal of International Law. Vol. 38 Issue 1.
? Tom Ginsburg and Alberto Simper. 2013. ?Introduction: Constitutions in Authoritarian Regimes? and Zachary Elkins, Tom Ginsburg and James Melton ?The Content of Authoritarian Constitutions? in Tom Ginsburg and Alberto Simpser (eds.) Constitutions in Authoritarian Regimes. Cambridge University Press.
? Tamir Moustafa and Tom Ginsburg. 2008. ?Introduction: The Functions of Courts in Authoritarian Politics? in Tom Ginsburg and Tamir Moustafa. Rule by Law: The Politics of Courts in Authoritarian Regimes. Cambridge University Press.
? Michael Albertus and Victor A., Menaldo ?Dictators as Founding Fathers? The Role of Constitutions Under Autocracy,? Economics & Politics, Volume 24(3), November 2012.
? David Landau and Rosalinda Dixon. ?Constraining Constitutional Change? Wakeforest Law Review, Vol 50: 859.
? Berk Esen & Şebnem Gümüşçü (2017): A Small Yes for Presidentialism: The Turkish Constitutional Referendum of April 2017, South European Society and Politics.
? Aziz Huq and Tom Ginsburg How to lose a constitutional democracy, Vox Feb 21. 2017, available at https://www.vox.com/the-big-idea/2017/2/21/14664568/lose-constitutional-democracy-autocracy-trump-authoritarian
? Aziz Huq and Tom Ginsburg ?How to Lose a Constitutional Democracy? 65 UCLA L. Rev. 78 (2018).