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 :

1. 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?
2. 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?
3. Different perceptions of the judicial role. Techniques judges use to assert their roles. Distinguishing law and politics.
4. 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.