JPJ2133H1F

Undergraduate Course Code: LAW433H1F

Constitutional Courts and Constitutional Rights

Themes

This is a course in comparative constitutional law and practice. It course offers the rare opportunity to combine the study of modern constitutional law with interaction with former judges from the highest courts of each jurisdiction examined. Each of the judges will discuss constitutional adjudication generally, as well as the challenges of some of their own cases. The three eminent retired judges who will participate in the course are Frank Iacobucci, retired justice of Supreme Court of Canada; Aharon Barak, retired President of the Supreme Court of Israel; and Dieter Grimm, retired justice of German Constitutional Court. The class meets as an intensive course when the judges participate.

Our study of the German, Israeli and Canadian constitutional systems delineates the framework of modern constitutionalism. It highlights the path-breaking elements of each system as well as the common features and aspirations. The post-WWII German Constitution, a formal, comprehensive instrument, repudiates the Nazi regime and aspires to secure the stability of the new constitutional arrangements, including rights protection, through judicial review by a very powerful Constitutional Court and restrictions on permissible amendment. The Constitution of Israel, with a much less formal structure, protects democracy, the rule of law and rights through judicial review. Its highest court, the Supreme Court of Israel, operates on the basis of the common law and quasi-constitutional statute, yet is widely considered to be one of the most powerful and innovative courts in the world. Israel’s rights-protecting system is based on the Canadian Charter. The intensive part of the course moves beyond the study of the constitutional text, interpretation and case law to gain insight into the judicial role firsthand from judges who wrote some of the most important judgments of their era. Topics include development of the concept of inherent human dignity, limitation and override of rights, adjudication in times of emergency including terrorism, negative versus positive rights, the legitimacy of judicial review and the creativity of the judicial role.

LIMITED ENROLMENT: This course is offered at the Faculty of Law. Enrolment is limited to four (4) graduate POL students.

Format and Requirements

4, 250 words each,(one page each) informal comments on class readings and discussions, spaced evenly throughout the term plus participation, which includes attendance and class participation (20%), and a 48 hour take home examination (80%), to be signed out from and returned to the Records Office. The examination may be taken during any 48 hour period between the first day of the examination period and due no later than the set deadline for written work in the applicable term (see Take-home Policy for details). Students may opt to write an essay (8,000 to 10,000 words) instead of the take home examination. Professor Weinrib will provide assistance in selecting a paper topic and research support for foreign sources. Students may complete a Supervised Upper Year Research Paper and fulfill the Perspective course requirements in this course.