Comparative Constitutional History
HIS 6416
LAW 6936, section 6136
Fall 2005, Wed 9-11 periods (4-7 pm)
Room: CBD 324
Elizabeth Dale
Office hours: Wed 10-11 AM (at law school)
1:30-3:00 PM (at Keene-Flint)
Thurs 10-11 AM (at Keene-Flint)
and by appointment
Offices: 224 at Keene-Flint
240E
at
Phone: 392-0271
Overview:
Constitutional history is a well-established, though in recent years much neglected, branch of legal history and comparative studies have long been a fundamental part of that field. But though comparative constitutional history has undergone rejuvenation recently, in its modern guise it is a field of study in search of a methodology.
In this seminar on comparative constitutional history we examine a number of different constitutional systems (or constitutional orders) in their historical context. In the process, we will explore and compare a number of methodologies, including older models (such as functionalism and modernization theory) and newer approaches (the idea of constitutional borrowing, theories of postcolonial constitutionalism, and a variety of discourse theories). While some methods will, in the end, seem more fruitful than others, the goal of this seminar is not to come up with a final, best approach to comparative constitutional history. Rather it is to introduce the range of available options and consider what other approaches might be possible.
The assigned books are listed below, and then under the week we are reading them. Some of these books are, unfortunately, expensive. I recommend you consider sharing purchases with other students, and also consider going on line to Amazon.com, for example, to see if you can find them used. Articles and constitutions (except as noted) are available on line as a link to this syllabus; some of the journal sites require access through UF, so please familiarize yourself with the library’s off campus access system. Those materials that cannot be linked will be available as handouts in some convenient place. Materials listed as “additional readings” or “background” are intended to supplement readings for the course, but are not required. They may also help you in beginning your work on your research paper, and may be used for your book review project.
Assignments
You will be graded on two assignments:
Assigned books:
Brown, Nathan. Constitutions in a Nonconstitutional World: Arab Basic Laws & the Prospects for Accountable Government (SUNY Press, 2001).
Brzezinski, Mark. The
Struggle for Constitutionalism in Poland (1998).
Caldwell, Peter C. Popular Sovereignty and the Crisis of
German Constitutional Law: The Theory & Practice of
Fitzsimmons, Michael P.The Remaking of
Jacobsohn, Gary. Apple of Gold: Constitutionalism in
Klug, Heinz. Constituting Democracy: Law, Globalism, and
South Africa’s Political Reconstruction.
(Cambridge University Press, 2000).
Krasner, Stephen, Sovereignty: Organized Hypocrisy
(Princeton University Press, 1999).
Kuhn, Philip, Origins of the
Moore, Ray A.
and Donald L. Robinson, Partners for
Democracy: Crafting the New
Vick, Brian. Defining Germany: The 1848 Frankfurt Parliamentarians and National Identity. (Harvard University Press, 2002).
Wood, Gordon, The Creation of the American Republic (1969, reprint 1998)
Articles and primary materials that are assigned for each week are listed below.
In addition to the supplemental works listed below, you might find Immanuel Wallerstein, World Systems Analysis (Duke University Press, 2005) and/or Jackson and Tushnet, Comparative Constitutional Law (Foundation Press, 1999) helpful books to read.
Assignments:
Week 1: What is a constitution? How can we study comparative constitutional history?
“Constitution” and “Constitutionalism” at http://plato.stanford.edu/entries/constitutionalism/
Kim Lane Scheppele, “The Agendas of Comparative Constitutionalism,” Law and Courts 13 (Spring 2003): 5-22 at http://www.law.nyu.edu/lawcourts/pubs/newsletter/spring03.pdf
Related materials: Law and Society Review 38 (Sept 2004) (special issue on constitutions) (available on line, check UF library e-journals)
Week 2: US Constitution
Gordon Wood, The Creation of the American Republic (1969, reprint 1998).
Related readings:
J. Isaac, “Republicanism vs. Liberalism: A Reconsideration,” History of Political Thought 9 (1988): 349-377
Richard Bellamy and Dino Castiglione, “Constitutionalism and Democracy: Political Theory and the American Constitution,” British Journal of Political Science 27 (1997): 595-618
Jack P. Greene, Negotiated Authorities: Essays in colonial Political and Constitutional History (1994)
Jack P.
Greene, Peripheries and Center:
Constitutional Development in the Extended Politics of the British Empire and
the
Charles Beard, An Economic Interpretation of the Constitution (1913)
Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the American Constitution (University of Kansas Press, 1985)
Week 3: French
Revolution
Fitzsimmons, Michael P.The Remaking of
Background materials: http://www.lib.byu.edu/~rdh/eurodocs/fran/1871.html
Week 4:
Brazilian Constitution of 1824 (handout)
Gargarella, Roberto. “Towards a
Typology of Latin American Constitutionalism, 1810-1860. Latin American Research Review 39 (2004): 141-153 (on line, check
UF e-journals).
Caplan, Karen. “The Legal Revolution in
Town Politics:
Schultz,
Kirsten. “Royal Authority, Empire and the Critique of Colonialism: Political
Discourse in Rio de Janiero (1808-1821). Luso-Brazilian
Review 37 (2000): 7-31 (on line, see UF e-journals or UF account with EBSCOhost Academic Search Premier)
Sohrabi, Nader. “Global Waves, Local
Actors: What the Young Turks Knew about Other Revolutions and Why it Mattered,”
Comparative Studies in Society and
History 44 (2002): 45-79 (on line, check UF e-journals).
Doorenspleet, Renske. “Reassessing the
Three Waves of Democratization,” World
Politics 52 (2000): 384-406 (available on line, check UF e-journals).
Related readings: Huntington, Samuel. The Third Wave: Democratization in the Late Twentieth Century (University of Oklahoma Press, 1991).
Background materials: http://www.fordham.edu/halsall/mod/modsbook32.html (19th century Latin American resources); http://www.library.yale.edu/Internet/latinamerica.html (more Latin American on line sources)
Week 5: 1848
Vick, Brian. Defining Germany: The 1848 Frankfurt Parliamentarians and National Identity. (Harvard University Press, 2002).
Background materials: Encyclopedia of 1848
Revolutions (“Introduction”)
Week 6: Meiji
Nishitani, Kei. THE PROBLEM OF DISCIPLINE IN MODERN
Miyake, Masaki.
Masuda, Tomoko; Fraser, A., transl. THE MEIJI
CONSTITUTION: THEORY AND PRACTICE. East
Asian History [
Silberman, Bernard S. BUREAUCRATIC DEVELOPMENT AND
BUREAUCRATIZATION: THE CASE OF
Quo, F. Q. DEMOCRATIC THEORIES AND JAPANESE MODERNIZATION. Modern Asian Studies 6(1972): 17-31 (on line at Jstor).
Duus, Peter. FOUNDATIONS OF CONSTITUTIONAL GOVERNMENT
IN MODERN
Teters, Barbara J. KUGA'S COMMENTARIES ON THE CONSTITUTION OF THE EMPIRE OF JAPAN. Journal of Asian Studies 28 (1969): 321-337 (on line at Jstor).
Week 7:
Kuhn,Philip, Origins of the
Scheppele, Kim Lane, “Aspirational and Aversive
Constitutionalism: The Case for Studying Cross-Constitutional Influence through
Negative Models.” International Journal
of Constitutional Law 1 (2003): 296-324 (available on line, check UF
library e-journals).
Week 8:
Constitution of the German Federation (1919)
Caldwell, Peter C. Popular Sovereignty and the Crisis of
German Constitutional Law: The Theory & Practice of
Background reading: “The Weimar Republic”
Week 9:
Moore, Ray A.
and Donald L. Robinson, Partners for
Democracy: Crafting the New
Week 10:
Jacobsohn, Gary. Apple of Gold: Constitutionalism in
Week 11:
Constitution of the Republic of South Africa (1997)
Klug, Heinz. Constituting Democracy: Law, Globalism, and
South Africa’s Political Reconstruction.
(Cambridge University Press,
2000).
Related readings:
Week 12:
Constitution of
the Republic of Poland (1997)
Brzezinski, Mark. The
Struggle for Constitutionalism in Poland (1998).
Week 13:
Afghanistan Constitution
(2004)
Brown, Nathan. Constitutions in a Nonconstitutional World: Arab Basic Laws & the Prospects for Accountable Government (SUNY Press, 2001).
Related readings: Said Amir Arjomand,
“The Role of Religion and the Hanafi and Ja’fari Jurisprudence in the New
Constitution of Afghanistan” at http://www.cic.nyu.edu/pdf/E14RoleofReligioninConstitutionArjomand.pdf
Background material: http://www.constitution-afg.com and
http://www.cic.nyu.edu/conflict/conflict_translations.html
Week 14: European
Union?
Krasner, Stephen, Sovereignty: Organized Hypocrisy
(Princeton University Press, 1999).
Background material: http://www.unizar.es/euroconstitucion/Home.htm
(contains links to relevant treaties, and related materials)
Related readings: European
Constitutional Law Review 1 (February 2005)
Other readings and sources:
On line:
European Documents (often in original language) at http://www.lib.byu.edu/~rdh/eurodocs/ec.html
Books and articles:
Ackerman, Bruce. “The Rise of World Constitutionalism,” Virginia Law Review (1997): 775
van Caenegem, R.C. An Historical Introduction to Western Constitutional Law. (Cambridge University Press 1995).
Dale,
Greenberg, Douglas, Stanley Katz, Melanie Beth Olivero and Stephen Wheatley, eds., Constitutionalism and Democracy. (Oxford University Press, 1993)
Hirschl, Ran. Towards Juristocracy: A Comparative Inquiry into the Origins and Consequences of the New Constitutionalism. (Harvard University Press, 2004).
Inoue, Kyoko MacArthur's Japanese Constitution: A
Linguistic and Cultural Study of its Making.
Kantorowicz, Ernst. The King’s Two Bodies. Princeton:Princeton University Press, 1957.
Kommers, Donald P. The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press, 1980).
Ludwikowski, Rett R. and William F. Fox, Jr., The Beginning of the Constitutional Era: A Bicentennial Comparative Analysis of the First Modern Constitutions (Catholic University of America Press, 1993).
McIlwain, Charles Howard. Constitutionalism: Ancient and Modern. (Cornell University Press., 1940).
Moore, James
Maxwell. The Roots of French
Republicanism; The Evolution of the Republican Ideal in French-Revolutionary
Ward, Lee. The Politics of Liberty in England and Revolutionary America (Cambridge University Press, 2004).