Comparative Public Law and Systems of Governance

Mandatory course for LL.M. students (2017-2018)

4 credits (July-September 2017)

Instructors: Dr. N. Vasanthi and Mr. Sidharth Chauhan

NALSAR University of Law, Hyderabad

Class timings: Mondays and Thursdays (11:30 AM – 1:30 PM)

Classroom instruction is expected to last for 24 sessions, i.e. 48 hours. This will include lectures
by the two instructors as well as a few guest talks.

Evaluation: End-term examination for 100 marks.

PART A – Dr. N. Vasanthi

This course will trace the evolution of comparative public law as it exists today by
looking at the origins and development of public law in common law countries. The roots of
public law have been traced to Roman law by some authors, while others maintain that it has its
roots in a broader European context. The modern understanding of public law deals with the law
that governs the relations between the citizen and the State. Although it is routinely identified
with practical fields such as constitutional law and administrative law, the principles of public
law have impacted all other areas of law and it is useful to understand the interface between
public law and other branches of law.

Comparative law has been an area of study in different branches of law, and offers
students perspectives not confined to their own national laws and institutions. The borrowing of
legal ideas has been a long established tradition and the judiciary has also benefitted from the
judgments of courts from other jurisdictions. Comparative public law also offers insights into the
evolution of public law in different jurisdictions and the reasoning adopted by judicial forums,
both for the expansion of rights and to seek accountability from state actors. With a widening of
governmental functions, the presence of the state in newer sectors is also foregrounding a variety
of forums and strategies for imposing accountability on the state.

While Comparative Public Law cannot be strictly confined to any particular branch of
law, to a large extent we will examine it while assuming that it is coextensive with constitutional
law, particularly in those countries with a strong tradition of a written constitution and
independent judicial review. It is useful to be able to identify those parts of constitutional law
that present an opportunity to examine fundamental principles that motivate the provisions and
their interpretation. Thus basing on the fundamentals of constitutional law that students have

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already studied in their undergraduate course, this course will look at those principles of
constitutional law that could be better understood as public law which facilitates a comparative
understanding of the principles.

Objectives:

1. To enable students to understand the foundational principles of public law, particularly in

a comparative context.
2. To be able to appreciate the application of principles of public law in diverse contexts

The course will explore the changing understanding of Public law through the following units.

Unit 1: The definitional conundrum of Public Law (4 sessions) July

 Elisabeth Zoller, Introduction to Public law: A Comparative Study (BRILL, 2008), pp. 1-
25.
 Martin Loughlin, The Idea of Public Law (Oxford University Press, 2003) See Chapters
1, 6 and 9, i.e. ‘Introduction’, ‘Constituent Power’ and ‘The Pure Theory of Public Law’
respectively.
 Gillian S. Morris & Sandra Fredman, ‘The Costs of Exclusivity: Public and Private re-
examined’, Public Law 69-85 (1994).
 Christian Turner, ‘Origins of the Public/Private Theory of Legal Systems’ in Kit Barker
& Darryn Jensen (eds.), Private Law: Key Encounters with Public Law (Cambridge
University Press, 2013) at pp. 117-144.
 Emilios Christodoulidis & Stephen Tierney, Public Law and Politics: Rethinking the
Debate (Oxford University Press, 2003), pp. 1-12.

Unit 2: An introduction to methods in Comparative Constitutional Law (4 sessions)

This unit will cover the fundamental principles of comparative public law by looking at
constitutional borrowing. Constitutional borrowing has had a significant impact on Indian
constitutional adjudication and is increasingly being debated as an authentic source of law. While
in constitutional design borrowing has been frequent and hence in the interpretation decisions of
a court from another jurisdiction are often cited the manner in borrowing happens will be
discussed. The contribution of comparative constitutional law to the existing constitutional
principles and decision will be highlighted.

 Mark Tushnet, ‘The Possibilities of Comparative Constitutional Law’, 108 Yale Law
Journal 1225-1309 (1999).
 Cheryl Saunders, ‘The Use and Misuse of Comparative Constitutional Law’ (The George
P. Smith Lecture in International Law), 13(1) The Indiana Journal of Global Legal
Studies 37 (2006).

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  David S. Law and Mila Versteeg, ‘Sham Constitutions’, 101 California Law Review 863
(2013).
 Sujit Choudhry, ‘Method In Comparative Constitutional Law: A Comment on Law and
Versteeg’, 87 New York University Law Review 2078-2087 (2012).
 Valentina Rita Scott, ‘India: A critical use of foreign precedents in constitutional
adjudication’, in Tania Groppi & Marie-Claire Ponthoreau (eds.), The Use of Foreign
Precedents by Constitutional Judges (citation incomplete)
 Durga Das Basu, Comparative Constitutional Law, 3rd edn. (LexisNexis India, 2014)

Unit 3: Position of rights in public law (4 sessions)

One of the most important developments in public law, one that differentiates earlier law
of the government from the present law, is the position of rights within public law. The
protection of rights has become the reason for existing of public law and the existence of the
state. This module will look at the expanding scope of rights now available against the state and
increasingly also available against private parties. The unit will cover protecting constitutional
rights (i.e. conceptual categorization of rights), horizontal and vertical forms of protecting rights
as well as variant standards of judicial review, namely ‘strong’ and ‘weak’ forms of judicial
scrutiny.

 Adam Tucker, ‘Constitutional Writing and Constitutional Rights’, Public Law 345-362
(2013).
 Christopher Forsyth & Mark Elliott, ‘The legitimacy of judicial review’, Public Law 86
(2003).
 Julia Black, ‘Tensions in the Regulatory State’, Public Law 58-73 (2007).
 Myriam Hunter-Henin, ‘Why the French don't like the Burqa: Laicite, National Identity
and Religious Freedom’, 61(3) International and Comparative Law Quarterly 613-639
(2012).
 Paul Craig, ‘Judicial Review and Anxious Scrutiny: Foundations, Evolution and
Application’, Public Law 60 (2015).
 Sarah Hannett, ‘A Tale of Judicial Perseverance: The Restoration of Habeas Rights for
Guantanamo Detainees’, Public Law 627 (2008).
 Matthew Stephens, ‘The Commission on Legal Empowerment of the Poor: An
opportunity missed’, The Hague Journal on the Rule of Law 132-155 (2009).
 Dawood I. Ahmed & Tom Ginsburg, Constitutional Islamization and Human Rights: The
Surprising Origin and Spread of Islamic Supremacy in Constitutions’, 54 Virginia
Journal of International Law 615 (2014)
 Benedict Kingsbury, Nico Krisch & Richard B. Stewart, ‘The Emergence of Global
Administrative Law’, 68 Law and Contemporary Problems 15-62 (2005).

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PART B – Mr. Sidharth Chauhan

Unit 4: The contours of legal transplants (4 sessions)

An understanding of how legal principles and institutions are transplanted from one
cultural context to another is vital to make sense of legal change in an increasingly
interconnected world. This module tries to examine both the processes by which such transplants
take place as well as their long-term consequences in terms of the diffusion of legal cultures
across borders. We will concentrate on some specific reasons that have led to transplants at
different points of history such as colonialism, the rise of global capital, the emergence of
multilateral institutions, the politics of economic development and the exchange of ideas through
academic and professional endeavours.

 Alan Watson, ‘From Legal Transplants to Legal Formants’, 43(3) The American Journal
of Comparative Law 469-476 (1995).
 William Ewald, ‘Comparative Jurisprudence (II): The Logic of Legal Transplants’, 43(4)
The American Journal of Comparative Law 489-510 (1995).
 William Twining, General Jurisprudence: Understanding Law from a Global
Perspective (Cambridge University Press, 2009), See ‘Chapter 9 – Diffusion of Law: A
global perspective’ at pp. 269-292.

Unit 5: Separation of Powers and Judicial Review (8 sessions)

The study of constitutionalism bears an interdisciplinary character and most commonly

appears in political science departments and law schools. In this module, we will begin with a
discussion on how the principle of 'separation of powers' plays out in presidential and
parliamentary forms of government (Ackerman 2000). The first of the prescribed readings makes
interesting points about the relative merits and pitfalls of the 'strong' and 'weak' notions of
separation of powers. It further goes on to argue for a newer strain in this principle which
contemplates institutions that play a regulatory role as well as that of preserving integrity in
governmental action. The second reading (Issacharoff 2007) looks at another core question about
systems of government. Should countries which have recently emerged as democracies, retain
strong measures to prevent or counter-act political mobilization by extremist or potentially
disruptive elements? Is there a conceptual inconsistency if governments that espouse political
liberalism also choose to restrain some individuals and groups from engaging in political action?

The third reading assignment (Slaughter 1994) provides a theoretical framework for
examining how adjudicatory bodies learn from institutions located in other jurisdictions. Given
the proliferation of international and regional adjudicatory bodies, it is important to think about
'vertical' as well as 'horizontal' forms of judicial communication. Over the last decade or so, there
has been a virtual flood of scholarly writing on how domestic courts often look to foreign

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precedents for deciding cases before them. The attitudes range from that of a cooperative
transjudicial dialogue to a self-conscious preference for exceptionalism in these matters. This
reading will help you navigate that literature with greater clarity. The fourth reading
(Thiruvengadam 2008) locates this phenomenon in the South Asian context and concentrates on
how social action litigation has been propagated in the subcontinent through this route. The
penultimate reading (Hirschl 2006) turns to the broader question of how increasing judicial
intervention in political controversies can be seen as a global trend. It raises familiar objections
to expansive judicial review in a democratic set-up, especially when unelected judges rule on
socio-economic issues that have a larger impact on the population of a country. To conclude the
course, we will look at how the Naz Foundation case decided by the Delhi High Court in July
2009 demonstrated an imaginative approach towards invoking comparative materials (Choudhry
2013).

 Bruce Ackerman, 'The new separation of powers', 113 Harvard Law Review 633-729
(2000).
 Samuel Issacharoff, 'Fragile Democracies', 120 Harvard Law Review 1405-1467 (2007).
 Anne-Marie Slaughter, 'A typology of transjudicial communication', 29 University of
Richmond Law Review 99-137 (1994).
 Arun K. Thiruvengadam, 'In pursuit of the common illumination of our house: Trans-
judicial influence and the origins of PIL jurisprudence in South Asia', Indian Journal of
Constitutional Law 67-103 (2008).
 Ran Hirschl, 'The new constitutionalism and the judicialisation of pure politics
worldwide', 75 Fordham Law Review 721-753 (2006).
 Sujit Choudhry, ‘How to do Comparative Constitutional Law in India: Naz Foundation,
Same-Sex Rights and Dialogic Interpretation’, in Sunil Khilnani, Vikram Raghavan &
Arun K. Thiruvengadam (eds.), Comparative Constitutionalism in South Asia (Oxford
University Press, 2013), pp. 45-85.