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Comparative Civil Rights Protection: the United Kingdom and the United States


Semesterangivelse: Forårs kursus Kurset udbydes i skemagruppe A2

 


Udgave: Jura Kandidatuddannelsen 2012/2013
ECTS points: 10 ECTS
Punkter: 10 ECTS
Skemagruppe: A2

Semester:

Spring
Uddannelsesdel: Kandidat niveau
Kontaktpersoner: Fagansvarlig: David Jenkins
Andre undervisere: David Jenkins, Associate Professor of Comparative Constitutional Law
Undervisnings- periode: Every thursday 13-15 and tuesday 10-12 in even-numbered weeks
1. day: Thursday 7. february 2013
Formål: The course aims to understand how the two largest common-law legal systems protect rights, with and without written constitutions. While the American system relies on a written bill of rights and a judicial power to invalidate legislation that infringes rights, the British rule of parliamentary sovereignty ultimately requires political rather than legal checks. Both systems thus present very different conceptions of rights protections and institutional responsibilities, as well as majoritarian versus anti-majoritarian views of democracy, within broadly similar political and legal traditions. However, the course will also examine internal challenges to each national system. The British constitution has undergone tremendous changes in recent decades, with the Human Rights Act, devolution of power to regional assemblies, and a new, independent Supreme Court. These developments have arguably undermined parliamentary sovereignty and enhanced the power of the courts to protect rights. In the United States, controversies continue over whether the Constitution should be interpreted according to the original intent of the Constitution’s framers or in light of social change and international legal trends. Both approaches have considerable impact on the extent of rights protections, and the role of the judiciary in enforcing them.
Indhold: The course will briefly sketch the history of constitutional development in the U.K. and U.S., in order to show both common origins in their political and legal traditions, as well as how they diverge. There will also be an introduction to the nature of the unwritten common law and its impact upon the concept of individual rights. Starting with the U.K., the course will then focus on the concept of parliamentary sovereignty, its connection to democracy and the rule of law, and the historical centralization of government power in Britain. When looking at the U.S., attention will then be on the written Constitution, judicial power, as well as federalism and decentralized government. This initial comparison of the two systems will demonstrate that while they share broad principles about the separation of powers, rights, the nature of the State, the rejection of positive rights in favor of negative ones, and an emphasis on procedural rights, there are important differences. These focus on political versus legal checks on power, formalistic versus substantive notions of legal doctrine, and centralized versus localized decision-making. These similarities and differences go a long way to explaining why both countries share the same understanding of rights concepts, but historically have protected them in different ways. Nevertheless, debates within each country about the scope of rights protections and the judicial role also suggest that each national tradition still holds a kernel of the other within it: so while American originalists distrust judges and prefer a more political, positivist approach to rights protection, judges in Britain increasingly have been enforcing rights found both in the European Convention on Human Rights and the unwritten common law itself. With some reference to other countries like Canada, then, the course will attempt to uncover broader, “common core” principles of constitutional rights protection within the common-law tradition. Examination of the similarities and differences within the common-law countries is important to understand not only different ways of “dialogue” between government institutions in deciding rights questions, but the transnational communication of legal ideas between national jurisdictions. These internal and external perspectives will be useful in better understanding how the U.K. can reconcile European human rights jurisprudence with its own common law approach. This is now more important than ever, as the Lisbon Treaty also demands legal promotion of the common European values, based on the European Convention on Human Rights and the E.U. Charter of Fundamental Rights.
Kompetence- beskrivelse: - Identify the main characteristics of the American and British constitutional systems;
- Explain the points of convergence and divergence in the American and British political and legal traditions;
- Explain the given illustrations of substantive and procedural rights doctrines in both countries and analyze their systemic importance in the U.S. and U.K.;
- Identify and analyze structural protections to rights, e.g. federalism, ministerial responsibility
- Put into perspective the main characteristics of the British and American systems for protecting rights, through comparison with other common-law systems;
- Discuss the concept of “dialogue” and its importance to different approaches to rights protection;
- Formulate and communicate ideas and legal issues;
- Utilize international and foreign legal materials in a coherent, competent, and professional way;
Faglige forudsætninger: - Good knowledge of the English language is a requirement, not only for oral discussion but for reading a considerable amount of legal material;

- As the course is in seminar format, students must read assignments in advance and take an active part in group discussion. Adequate attendance and preparation are therefore critical. There will be no lectures, so success of the course depends upon student participation.
Eksamensform: Written without supervision (homework assignment) 1 day
Eksamen: 21. - 24. and 27. May 2013 (preliminary dates)
Kursus hjemmeside:
Pensum: As early as possible
Sidst redigeret: 10/5-2012



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