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Instructors: Dr. Amal Sethi
Event type:
Lecture
Displayed in timetable as:
Constitutional Inter
Hours per week:
2
Credits:
2,0
Language of instruction:
English
Min. | Max. participants:
- | -
Comments/contents:
Constitutional interpretation is the way in which the judiciary construes the constitution. This is an important issue in some common law jurisdictions because their apex courts those nations can overturn laws made by their legislatures via a process called judicial review.
For example, the United States Supreme Court had in Roe v. Wade that the Constitution of the United States conferred the right to have an abortion. They based this on a holistic reading of various individual rights provisions in the Constitution. However, recently in Dobbs v. Jackson Women's Health Organization, the Supreme Court overruled Roe v. Wade on the grounds that the substantive right to abortion was not "deeply rooted in this Nation's history or tradition," nor considered a right when the Due Process Clause was ratified in 1868, and was unknown in U.S. law until Roe. As can be seen from this single example, how courts interpret the constitution, and the ways in which they approach the latter have deep political implications.
Thus, how judges interpret a constitution is an important element in any given society. In this course, we will study the various common approaches to interpretation used by courts worldwide. We will return to the German Federal Constitutional Court and examine its approach to interpretation and see how it compares to other approaches.
The subtopics covered (and the class in which they will be covered) are as follows:
Textualism (Week 1)
Originalism (Week 2)
Common Law Constitutionalism (Week 3)
Dworkin and Natural Law (Week 4)
Living Constitutionalism (Week 5)
Structuralism (Week 6)
Pragmatism (Week 7)
Principled Positivism (Week 8)
Judicial Minimalism (Week 9)
Corpus Linguistics (Week 10)
Constitutional Interpretation in Germany (Human Rights) (Week 11)
Constitutional Interpretation in Germany (Structural Provisions) (Week 12)
Transformative Constitutionalism in Germany (Week 13)
German Case Study - Neubauer, et al. v. Germany (Week 14)
Readings for every respective week will be provided before the start of the course. This course will be largely conducted via OpenOLAT. In the materials section of OpenOLAT, the reading material for each class will be provided separately and named as per the class number. On average, there are 20-25 pages to read per class.
This course will aim to be a discussional one to encourage you to think deeply about the topics undertaken and prepare students for the Socratic method of teaching undertaken in Anglo-American Law Schools. Hence, it would be beneficial to skim through the readings before a particular class.
If you have any doubts email me anytime at amal.sethi@uni-hamburg.de If I fail to reply in a sufficiently timely fashion, email me again. Really: don’t be shy
Additional examination information:
Grades for this course will entirely be based on the final two-hour written exam. In the final exam, I will give you 8 conceptual questions, out of which you would need to attempt 2. These exams can be taken online and are completely open book - you are free to utilize any and every material.
One thing I would like to mention about the exams is that while the readings are more detailed than what we will cover in class, I will not for the exam ask you any questions which we have not gotten a chance to discuss in class (often multiple times in the semester).
As far as Erasmus students taking this course are concerned, if you have taken this course and would like to receive a grade for the class, I offer you two options - either doing a viva or a written exam. If you choose to do a viva, it will last roughly 15 minutes, where I will ask you general questions relating to the course. Alternatively, you could decide to write a written exam that will be approximately one hour, and I will give you four or five conceptual questions, out of which you need to attempt one. The same instructions provided above for the general exam apply to written examinations for Erasmus students as well. Both viva and written options will occur in the 8-10 days following your last class. I will conduct both on multiple days during the period to allow you flexibility based on your other exams etc.
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