Required Readings

For

Constitution (Comparative)
Law
(LAW-230/POL-216)

Volume I
Sessions 1-7

Marva Khan

Spring Semester 2017-2018

Lahore University of Management Sciences

School of Humanities and Social Sciences
 Lahore University of Management Sciences

LAW 230/POL 216 – Constitution (Comparative) Law

Spring 2018

Instructor Marva Khan

Room No. 1-10
Office Hours TBD
Email marva.khan@lums.edu.pk
Telephone 8066
Secretary/TA TBD
TA Office Hours TBD
Course URL (if any) -

Course Basics
Credit Hours 4
Lecture(s) Nbr of Lectures per week 2 Duration 1 hr 50 m
Recitation/Lab (per Nbr of Lectures per week None Duration N/A
week)
Tutorial (per week) Nbr of Lectures per week None Duration N/A

Course Distribution
Core 1st year B.A.-LL.B students
Elective Political Science Students
Open for Student Juniors and Seniors
Category

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Close for Student Freshman and Sophomore
Category

Course Description and Learning Outcomes

This course covers various aspects of the comparative study of constitutional systems in the world, primarily focusing on United States, Pakistan,
India, United Kingdom, and also on some European constitutional structures. The first module of the course is introductory: it familiarizes the
students with basics of constitutional law, including constitution making, which has a particular bearing on all subsequent constitutional structures
that ensue. It also introduces the students to the basic framework of comparative constitutional study, including the latter’s limitations, and
constitutional interpretation.

Building upon the first few sessions, the Second module of the course focuses on a comparison of state structures provided for in various
constitutions. This includes an analysis of parliamentary versus presidential forms of government; separation of powers; judicial review – its
origins, and adaptations across the world; and executive emergency powers.

The Third module of the course focuses on a rights-based discourse within the comparative constitutional framework, including issues including
protection of minorities; freedom of religion; freedom of speech; gender equality; and the status of social welfare within the constitutional
framework.

The objective of the course is to help the students learn not only the basic concepts within the field of comparative constitutional law, but also to
make them familiar with the dominant discourses and debates which have become dominant in the current socio-political milieu. By the end of the
course, they should be able to identify the various themes, and engage in an academic discourse on the subject matter. Students have also been
assigned “further readings” in multiple sessions, which entail more focused academic articles in order to assist students in their research papers.

Course Prerequisite(s)
None

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Course Objectives

Grading Breakup and Policy

In-Class Assignment 10%
Quiz (s): 15%
Class Participation 10%
and Attendance:
Research Paper 30%
Presentation 15%
Midterm 20%
Examination:

Examination Detail
Midterm Exam Yes/No: Yes
Combine/Separate:
Duration: In-Class
Preferred Date: Session 14
Exam Specifications: Subjective
Final Exam Yes/No: No

Disability Policy

Any student who, because of a disability, may require special arrangements in order to meet the course requirements should contact the instructor or
the Office of Student Affairs (OSA) as soon as possible so that requisite arrangements can be made.

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Course Overview
Lecture Topics Recommended Readings Objectives/Application
MODULE 1: INTRODUCTION
1. Introduction to the No readings Introduce students to the structure of the course and work
course requirements.

2. Comparative Tom Ginsburg & Rosalind Dixon: “Comparative Introduce students to the basic overview of emergence of
constitutional law: Constitutional Law – Introduction”; the study of comparative constitutional law and its
History and Vicki Jackson “Methodological Challenges in respective limitations.
boundaries of the Comparative Constitutional Law”;
field David Fontana, “Rise and fall of comparative
constitution in post war era”.
3. Constitution making Federalist Papers 23 & 51 Before delving into the second module, it is vital that
I Tribe & Landry, “Reflections on Constitution students understand the basic conceptions pertaining to
Making”; constitutional law, and also learn the different factors
Printz v. US (Excerpts from J. Scalia’s majority involved in constitution making from a comparative
opinion) perspective. These three sessions entail a discussion on
constitution making in USA, Canada, South Africa, and
Pakistan to give an overview of, and evolution of the
process from the first written constitution, to more recent
constitutions, as well as show the varying factors involved
in different categories of nation-states.

4. Constitution making Michael Stein, “The success of constitutional

II reform in Canada: A comparative historical
analysis” (pg 17-48);
DRI Briefing paper “Constitution Making in
South Africa”.

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5. Constitution making Joel-Rios, “Notes on Democracy and
III constitution making”;
Further reading: Excerpts from Constitutional
debates;
G.W. Choudhury “Constitution Making
Dilemmas in Pakistan”;
D. P. Singhal: The New Constitution of
Pakistan”.
6. Constitutionalism Printz v. US (Excerpts from J. Breyer’s dissent Carrying on from the previous session, students will be
and constitutional & J. Posner’s opinion); introduced to the different ideologies used in constitutional
interpretation Federalist Paper No. 10; interpretation.
Andrei Marmor “Interpretation and Legal
Theory” (Excerpts);
J. E Murkens, “The Quest for Constitutionalism
in UK Public Discourse”.
7. In-class assignment
MODULE 2: STATE STRUCTURE
8. Constitution as the Vicki Jackson, “The international migration of Before delving into a focused study of formalistic state
source of state constitutional norms in the world order: structures, the students shall be taught the basic concept of
structure: Constitutions as ‘living trees’?”. written constitutions, and their significance. The session
Comparative will build upon the importance of interpretation with
analysis of respect to evolution in constitutional law.
constitutions as
“living trees”

9. Forms of Juan J. Tinz, “Presidential or parliamentary The students will learn about the main differences between
government: democracy: Does it make a difference?”; presidential and parliamentary forms of government. They

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 Parliamentary J. A. Rahim: “Outline of a Federal Constitution shall also learn the benefits and drawbacks of both, and
system versus for Pakistan”. made to analyze the types of societies where each would
Presidential system be optimally suited to.

10. Separation of James Madison, “Federalist No. 47”; The students shall learn the concept and significance of
powers Montesquieu, “The Spirit of the Laws” separation of powers between the three organs of the state,
(Excerpts); namely, the executive, legislature, and the judiciary.
Bruce Ackerman, “We the People” (Excerpts);
US Constitution.
Further Reading: Ridwanul Hoque,
“Constitutionalism and Judiciary in
Bangladesh”.
11. Judicial Review - I Marbury v. Madison; In these two sessions, the students will learn about the
Mark Tushnet, “Marbury v. Madison around the origins of judicial review, starting from the case of
world”; Marbury v. Madison. Subsequently, they will learn about
Federalist Paper 78. the impact of this judgment; by virtue of which they shall
Further Reading: Kaswer Ahmed, “The analyze the varied constitutional evolution of the concept
Supreme Court’s Power of Judicial Review in of judicial review across various countries.
Bangladesh: A Critical Evaluation”.

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12. Judicial Review - II Miguel Shor, “Squaring the circle:
Democratizing judicial review”;
S. P. Sathe, “Judicial Review: The Indian
Experience”;
Maryam S. Khan, “Genesis and Evolution of
PIL in the SC of Pakistan: Toward a dynamic
theory of judicialization”.
Further Reading: Deepika Udagama, “Taming
of the Beast: Judicial Responses to State
Violence in Sri Lanka”.
13 – 15. Emergency Powers Jules Lobel, “Emergency Power and In light of the increase in terrorism globally, it becomes
decline of Liberalism” (pg 3-25, 30-35); even more pertinent for students to learn about the
Oren Gross, “Chaos and rules: Should comparative constitutional frameworks present to deal
responses to violent crises be with emergency situations, as well as how likely (and
Constitutional?” (pg 3-32, 37-45); possible) it is for countries to transgress constitutional
Federalist Paper 69; boundaries. The judiciary’s role in emergency situations
Standford Levinson, “Constitutional shall also be analyzed.
dictatorship: its dangers and design” (pg 6-16);
Anil Kalahan, “Colonial Continuities:
Human Rights, terrorism, and security laws in
India”.
Further Reading: Adrian Vermeule, “Holmes
on emergencies”.
Radhika Coomaraswamy, “Rule by Emergency:
Sri Lanka’s Post-Colonial Constitutional
Experience”.

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16. In Class Mid-term
Exam

MODULE 3: RIGHTS BASED DISCOURSE

17. Constitutionalism Roger D. Masters, “Duties of humanity: Legal This session aims at exrapulating the effects of
and rights - and moral obligation in Rousseau’s thought” (pg constitutions, both written and unwritten, on fundamental
unwritten and 83-105); rights.
structural Human Rights Act, 1998;
constitutions (UK & Mark Tushnet, “New Forms of Judicial Review
Australia) and the Persistence of Right”;
Thomas McAffee, “Unwritten Constitution”.

18. Fundamental rights Section 1 of Canadian Charter;
– the question of Overview of Articles 8-28, 29-40 of
limitations Constitution of Pakistan;
Dawood Ahmed & Tom Ginsburg,
“Constitutional Islamization and Human Rights:
The Surprising Origin and Spread of Islamic
Supremacy in Constitutions”.
19. Right to life Roper v. Simmons (Excerpts); Roe v. Wade;
Shehla Zia Case (Excerpts); Carol Steiker – Talk
on Capital Punishment
Building upon the discourse of the effects of types of
constitutions on fundamental rights, this session is aimed
at helping students identify various types of limitations
that exist on these rights, in different constitutions.
This part of the course focuses on individual fundamental
rights and draw respective comparisons between
constitutions. This session in particular focuses on the

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 <http://today.law.harvard.edu/steiker -study-
influential-in-connecticutsdecision-to-abolish-
deathpenalty/?utm_source=facebook&ut
m_medium=social&utm_campaign=h ls-
facebook-general>.
20. Protection of Federalist No. 9;
minorities – I: Kristin Henrard, “Devising an Adequate System
Federalism of Minority Protection” (pg 1-15, 319-321);
Maryam Khan, “Ethnic Federalism in Pakistan:
Federal design, construction of ethno-linguistic
identity, and group conflict”;
Articles 20, 21, 25 and 260(3) of Pakistan’s
Constitution;
Further Reading: Gobinda Chandra Mandal,
“Rights of Minorities – The case of
Bangladesh”.
Speech of Bhupendra Kumar Dutta.
various debates surrounding the right to life.
Building upon the concepts studied in the first two
modules of the course, the students will study the basic
concept of protection of minorities, and how that has been
catered across constitutions – with arguments ranging
from deeming a federal structure as sufficient for the
protection of minority rights, to those favoring affirmative
action for ensuring provision of group-based rights.
Linkages shall also be drawn to judicial review and the
concept of public interest litigation with respect to the
rights based discourse.

21 & 22. Protection of Anne-Peters, “Women, Quotas & Constitutions”

minorities – II: (pg 21-30, 41-72, 296- 327);
affirmative action & Grutter v Bollinger 539 US 306 (2003);
group based rights Review: Mark Tushnet, “New Forms of Judicial
Review and the Persistence of Right”;
Mark Tushnet, “Comparative Constitutional
Federalism”, (Pg 139- 151).
23. Gender equality Anne-Peters, “Women, Quotas & This session focuses on status of gender equality across
Constitutions” (pg 94-127); constitutions, as this does not necessarily target minority
Susanne Baer, “Dignity, liberty, groups (albeit the third gender shall fall within a minority

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 equality: A fundamental rights triangle of group).
constitutionalism”;
Eileen Kauffman, “Women and Law: A
comparative analysis of the US and Indian SC’s
equality jurisprudence”;
Muhammad Aslam Khaki v Federation of
Pakistan;
Rashida Patel Case (Excerpts);
Principles of State Policy in 1973 Constitution.
24. Freedom of speech Dennis v. U.S. 341 US 494 (1951) (Excerpts); This session compares freedom of speech and expression,
& expression New York Times Co v. Sullivan 376 US 254 as guaranteed by the First Amendment to the US
(1964) (Excerpts); constitution, as well as religious constitutions. The aim is
Steven Heyman, “Righting the balance: An to identify the various limitations and draw similarities and
inquiry into the foundations and limits of differences between the two.
freedom of expression”.
25. Freedom of religion Reynolds v. United States; This session compares religious freedom, as guaranteed by
Nicholas Graces, “Islam till death do you part? secular as well as religious constitutions. The aim is to
Rethinking apostasy laws”; identify the various limitations and draw similarities and
David Mednicoff, “A tale of three constitutions: differences between the two.
common drives and diverse outcomes in post
2010 Arab politics”;
Further Reading: Chapter XV of the Pakistan
Penal Code (Blasphemy laws);
Zaheerudin v The State (excerpts).
26. Positive social Excerpts from Constitutional debates; To conclude the rights-based discourse, as well as the
welfare Francesca Bingami & Carla Spivack, “Social course, this session shall focus on the status of welfare
and economic rights as fundamental rights”; rights, particularly positive rights, as provided for in
Amartya Sen, “Political rights versus economic different constitutions.
needs”;

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 Amartya Sen, “Human rights and Asian values”.
27. Review No additional readings
28. Quiz No additional readins

Textbook(s)/Supplementary Readings

Reading packages shall be available at the photocopier. Additional material may be uploaded over the course of the semester on LMS.

Volume 1 contains all relevant statutes and constitutional provisions to be used as reference material over the course of the semester;
Volume 2 contains readings for Modules 1 and 2;
Volume 3 contains readings for Module 3.

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