Comparative Constitutional Law: Concepts, Themes and Practice
Subject tutor: Peter Leyland, Professor of Public Law, SOAS, University of London.
Course Delivery
Every session will be supported by a power point presentation with detailed outlines of the key points covered as part of the lecture. There will be recommended reading relating to each topic. In advance of the lecture students should seek to do the basic reading from these books, articles or other materials. After the lecture answers to the questions which have been provided should be attempted based on the lecture and the main recommended reading. The answers compiled from the lecture outlines and set reading will serve as ideal preparation for the final examination.
Assessment in outline
The formal assessment will be by way ofan unseen one and half hour written examination comprising twenty questions. Student will be required to attemptany ten questions. Students will be expected to write 5-6 line answers to these questions. The examination will be closely based on the lectures and class discussion.
Bibliographical materials
In addition to the detailed lecture on power point one or two pieces of set reading will be available relating to each session. The reading may be a chapter from a book, an academic articleor other materials relating to the topic which will be placed on the website.Links to relevant websites will also be supplied where relevant.
National systems:
Leyland P The Constitution of the United Kingdom: A Contextual Analysis (3rd edn, Hart Publishing 2016).
Other volumes in the Constitutions of the World series e.g. USA, Spain, Thailand
could also be used if they are available in the LUMSA library.
Course Subject Matter
(1) Course introduction: Constitutions and Sources
the approach to teaching, recommended reading, assessment strategies.
Subject introduction: what is constitutional law?
Defining the scope of the subject: What are constitutions, why are constitutions essential? What kind of questions do constitutions address?
P Leyland The Constitution of the United Kingdom: A Contextual Analysis (3rd edn, Oxford: Hart Publishing, 2016), chapter 1.
See also: N Bamforth and P Leyland ‘Public Law in a Multi-Layered Constitution’ Judicial Review [2003] 157-162.
(2) Comparative methodology and types of constitution
Surveying different constitutional traditions with examples. Transplants and how to compare constitutions?
A Harding and P Leyland ‘Comparative Law in Constitutional Contexts’ inÖrücü E and Nelken D (eds) Comparative Law Handbook (Hart Publishing, 2007).
A Harding ‘Comparative Law and Legal Transplantation in South East Asia: Making Sense of the “Nomic Din”’in D Nelken and J Feest (eds) Adapting Legal Cultures (Oxford, Hart Publishing, 2001).
P Leyland ‘Thailand’s Constitutional Watchdogs: Dobermans, Bloodhounds or Lapdogs?’ [2007] Journal of Comparative Law, 2:2, 151-176.
(3) Constitution Building and the Global Influence of the Westminster Model
The focus of this session will be upon the characteristics of the Westminster Model with consideration of structure,institutions and conventions.
A Harding ‘The “Westminster Model” constitution overseas: transplantation, adaption and development in Commonwealth states’ Oxford University Commonwealth Law Journal, Winter 2004, 143-166.
D O’Brien The Constitutional Systems of the Commonwealth Caribbean (Oxford, Hart Publishing 2014) chapter 1.
(4) Constitutional Principles
Establishing a balance between institutions: legislative sovereignty, the courts and the rule of Law, the development and application of separation of powers.
P Leyland The Constitution of the United Kingdom: A Contextual Analysis (3rd edn, Oxford, Hart Publishing), chapter 3.
R White ‘Separation of powers and legislative supremacy’ [2011] Law Quarterly Review 456-474.
(5) Evaluating electoral systems
This session will look at the principles of political representation and consider the strengths and weaknesses of the different kinds of electoral system with reference to outcomes in different national systems.
PR Myths, Electoral Reform Society, Quick Guides (2008).
P Leyland ‘The 1832 Reform Act and Its Constitutional Legacy’ (unpublished paper available from website).
(6) Lawmaking and Parliaments
Law making process from the perspective of the Westminster Model, US model and continental models. The debate over the role of and reform of second chambers e.g. House of Lords versus Italian Senate reform.
P Leyland The Constitution of the United Kingdom: A Contextual Analysis, (3rd edn, Oxford, Hart Publishing 2016), chapter 5.
B Guastaferro ‘“Visible” and “invisible” Second Chambers in Unitary States “Territorialising” National Legislatures in Italy and the United Kingdom’ (Unpublished conference paper 2016).
P Leyland ‘The Second Chamber Debate in the UK Revisited: Life, Afterlife and Rebirth?’ Revista AIC, 2/2017, 1-19.
M Korris ‘Standing up for Scrutiny: How and Why Parliament Should Make Better Laws’ Parliamentary Affairs Vol 64, No 3, 2011, 564-574.
(7) Government: The role of the executive
From a comparative perspective : Presidents, Monarchs, PMs, head of state. How power is exercisedat an institutional level and what are the constitutional limits placed on such powers?
P Leyland The Constitution of the United Kingdom: A Contextual Analysis, (3rd edn, Oxford, Hart Publishing 2016), chapter 6.
Gianfranco Pasquino ‘The Powers of Heads of Government’ J Frosini and L Pegoraro (eds) Centre for Constitutional Studies and Democratic Development/Clueb (2006).
M Tushnet ‘The Constitutional Politics of the Executive Branch’ in The Constitution of the United States: A Contextual Analysis (2nd edn, Hart/Bloomsbury, 2015), chapter 3.
P Leyland and D Donati ‘Executive Accountability and the Changing Face of Government : UK and Italy Compared’ [2001] European Public Law 217-259.
(8) Constitutional monarchy and Presidential systems contrasted
The head of state in the United Kingdom is the monarch. In many other systems the President acts of head of state. How is the role of head of state discharged under different systems. This lecture will set out the debate over the retention of a monarchy in the UK and review a selection of presidential systems.
P Leyland The Constitution of the United Kingdom: A Contextual Analysis, (3rd edn, Oxford, Hart Publishing 2016), chapter 4.
M Tushnet The Constitution of the United States of America: A Contextual
Analysis (2nd edn, Oxford, Hart Publishing, 2015), chapter 3.
(9) Transparency and Freedom of Information
The challenge to cultures of secrecy at the heart of government will be the focus of this session. In particular, there will be a discussion of theUK Freedom of Information Act 2000 and trends towards openness which this legislation introduced.
R Hazell & D Busfield-Birch ‘Opening the Cabinet door: freedom of information and government policy making’ [2011] Public Law 260.
P Leyland ‘Freedom of Information and the Quest for Open Government’ in J Frosini and L Pegoraro (eds) Freedom of Information in the United Kingdom and Italy (Libreria Bonomo Editrice, (2003).
(10) Constitutional role of courts and the constitutional protection of rights
Comparing Human Rights Act to codified constitutions. Case study approach. Discussion of some relevant cases.
P Leyland The Constitution of the United Kingdom: A Contextual Analysis (Oxford,Hart Publishing, 2016), chapter 7.
A Harding, P Leyland , T Groppi ‘Constitutional Courts: Forms, Functions and Practice in Comparative Perspective’ in A Harding and P Leyland (eds) Constitutional Courts: A Comparative Study (Wildy, Simmonds & Hill, 2009).
(11) Territorial governance (i):
The trend away from the unitary state. Comparing Federal, Devolved, Regional constitutionals systems.
P Leyland ‘The multifaceted constitutional dynamics of UK devolution’ ICON (2011), Vol 9, No 1, 251-273.
P Leyland ‘Regional Government Reform in Italy: assessing the prospects for devolution’ [2002] Public Law 242.
(12) Territorial governance (ii):
The Irish Question: A Case Study – this session will consider the evolving relationship between Ireland and the United Kingdom with particular attention to Irish independence, the special status of Northern Ireland and the potential impact of Brexit.
C McCrudden ‘Northern Ireland, The Belfast Agreement and the British Constitution’ in J Jowell and D Oliver (eds) The Changing Constitution (6th edn, Oxford, Oxford University Press, 2007).
(13) Constitutional amendment and reform
Flexible versus rigid constitutions. This session will focus on how constitutions are amended and reformed.
I Cram ‘Some Thoughts on Constitutional Amendment’ UK Const L Blog (12 November 2013.
R Hazell ‘The Continuing Dynamism of Constitutional Reform’ Parliamentary Affairs, Vol 60, No 1, 2007, 3-25.
P Leyland The Constitution of the United Kingdom: A Contextual Analysis, (3rd edn, Oxford, Hart Publishing 2016), chapter 9.
T Wright ‘Democracy in Britain: Retrospect and Prospect’ The Political Quarterly, Vol 88, No 2, April-June 2017, 189-197.
(14) Revision and preparation for the examination.
(15) Examination
© Professor Peter Leyland, LUMSA, 2018
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