Comparative Constitutional Rights Law

Course content

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, Latin America 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, the right to abortion, 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 and 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.

Learning outcome

Knowledge:

Become familiar with a set of questions and different approaches to human rights interpretation, including how Danish approaches to rights differ from other jurisdictions.
Become aware of the latest developments relating to constitutional rights protections in Denmark and in other countries.
Understand the differing structure and processes behind legal argumentation of divergent courts and how this reflects in their differing decisions.

Skills:

Critically read and analyse both theoretical and empirical literature on constitutional rights.
Apply the knowledge built during the course to real life examples (Eg apply the principles behind the prohibition of discriminaton of same sex couples to current cases before constitutional and European courts etc).

Competences:

Learn to look beyond the mere outcomes of judicial decisions and consider also the rationales, materials and methods behind courts’ decision-making processes.
Apply differing methods of legal argumentation to hypothetical and real life cases.
Crafting, substantiating and structuring legal arguments when drafting legal documents.

Teaching and learning methods

Holdundervisning

Literature

Literature: The materials will be provided online: they include judicial decisions and relevant case notes or comments analysing these decisions. The list of cases may change prior to August 2026, depending on new developments in differing courts’ case law. The comprehensive and more detailed syllabus will be provided in August 2026.

Tentative syllabus:

Week 36: Death penalty.
Literature (excerpts from rulings): US Supreme Court Furman and Gregg cases, South Africa: SA Constitutional Court Makwanyane case

Week 37: Abortion.
Literature (excerpts from rulings): US Supreme Court Roe v Wade and Dobbs v Jackson 2022, France: Pre-1975 decision debate, Constitutional Council Abortion Decision, 1975, Germany: First German Abortion Decision, 1975 and Bundesverfassungsgericht’s 1993 Decision, Ireland: D. v. Ireland ECtHR, Attorney General v X and Others, 1992

Week 38: Absolute rights (right to life, dignity).
Literature (excerpts from rulings): Germany: Aviation Security Act Case, 2006, ECtHR: McCann case

Week 39: Socio-economic rights (right to housing, health, food)
Literature (excerpts from rulings: US Supreme Court DeShaney v Winnebago County, ECtHR: Lopez Ostra v Spain, IACtHR: Lagos del Campo v Peru, South Africa: RSA v Grootboom, India: PUCL v Union of India (2001)

Week 40: Obscenity.
Literature (excerpts from rulings):US Supreme Court The Miller Case, 1973, American Booksellers’ v. Hudnut, 1985, Janet Reno v. American Civil Liberties Union, 1997, Canada: Buttler case, Little Sisters Book v. Canada, 2000, ECtHR: Handyside v United Kingdom, 1976, South Africa: De Reuck v Director of Public Prosecutions

Week 41: Mock essay, revision of term

Week 44: Hate speech.
Literature (excerpts from rulings): US Supreme Court R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), Canada: Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 (2013), ECtHR: Vejdeland v. Sweden, 58 (2014), Germany: ‘Auschwitz lie’ decision, BVerfGE 90, 60 (1994)

Week 45: Subversive speech.
Literature (excerpts from rulings): US Supreme Court Dennis v United States, 1951, ECtHR: Communist Party v Turkey, 1998 and Refah v Turkey 1998

Week 46: Religion and minorities.
Literature (excerpts from rulings): US Supreme Court: Wisconsin v Yoder, 1972, South Africa: Prince v President of the Law Society of the Cape of Good Hope, 2002, Germany: Crucifix Case (Classroom Crucifix Case), 1987, France: Legislation prohibiting religious symbols

Week 47: Sexual orientation.
Literature (excerpts from rulings): ECHR: Dudgeon v United Kingdom, 1982, South Africa: National Coalition for Gay and Lesbian Equality v Minister of Justice, 1998, Germany: Constitutional Court uphold Lifetime Partnership Act, 2002, Zimbabwe: Banana v State, 2000, Canada: Halpern v Attorney General, 2003, Reference to the Supreme Court of Canada, 2004

Week 48: Revision and group sessions

Week 49: One-on-one sessions