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Course 1005 - Rethinking Comparative Constitutionalism




Kakarala Sitharamam

LAW, somewhat similar to the other key sites of modernity such as science, (economic) rationality, modern nation-state, has played a central role during the last two centuries in the way societies view and refashion themselves and also refashion ‘other’ societies wherever that was possible/feasible—through outright colonialism, or occupations etc. What the modern law has done to the world, both of the colonised as well as the coloniser’s, during the last two centuries is simultaneously astonishing in terms of the scale of social change it has ‘engineered’, and devastating in terms of its impact on depleting diversity of ‘cultures of legality’ that existed outside the ‘modern’ frames of regulation and governance. Many core concepts of modern life, such as property/ownership/authorship, family, marriage/relationship, citizenship (or rights and responsibilities) etc have undergone radical changes. Such tumultuous changes could not have been possible without various forms of coercion, violence, ignorance and/or deliberate disregard for non-modern notions/cultures of legality and such other strategies of modernity.


The discourse of law, however, has two neatly separated compartments—one at the location of its ‘professional’ knowledge (law schools, courts etc) and the other in the academic (largely social science) studies of law. The former still deals with ‘law’ as though a self-evidently universal analytical category that could be compared between jurisdictions without much difficulty (of judicial decisions, legislative practices, definitions of rights and responsibilities etc). The ‘diversity’ in legal practices therefore is in terms of ‘cultural adaptations’ of norms, institutions and practices; this is the body of work that is often referred to as comparative legal studies. The later on the other hand, raises methodological as well as epistemological questions to the existing comparative legal studies project, for any comparison between different jurisdictions tend to face difficult questions beyond the technical analysis (of institutions and litigation practices). The ‘culture question’ in the latter thus emerges as a far more serious source of disruption in the existing methodologies and epistemology of comparative law. 


This course, ‘Rethinking Comparative Constitutionalism’, will attempt to engage with some of the core concerns and challenges that emerged in these two sites of debates in law with a view to think the possibilities of productive bridging of the sites and through that rethink the project of comparative law/comparative constitutionalism.  
 
Module 1 – The Framing of the Field of Comparative Studies: Some New Questions 

Week 1
a. ‘The Parallel and the Different’: Place of ‘Difference’ in Comparative Studies

    i.    Shmuel N. Eisenstadt, Jens Riedel and Dominic Sachsenmaier “The Context of the Multiple Modernities Paradigm” in Comparative Civilisations and Multiple Modernities (2002)
     ii.    Partha Chatterjee, “Our Modernity” SEPHIS, 1997. (Link found Here)
     iii.    Pierre Legrand, “The Same and the Different” in Comparative Legal Studies: Traditions and Transitions, 2001.
 
Week 2
Comparing Legal Modernities:  Old Problems, New Questions

    i.    James Gordley, “The Universalist Heritage” in Comparative Legal Studies: Traditions and Transitions, 2001.
    ii.    Geoffrey Samuel, “Epistemology and Comparative Law: Contributions from the Sciences and Social Sciences” in Epistemology and Methodology of Comparative Law, 2004.
    iii.    Mark Van Hoecke and Mark Warrington, “Legal Cultures, Legal Paradigms, Legal Doctrine: Towards a new a new model for comparative law”, ICLQ 47, 1998
 
Week 3
Legal Cultures or Cultures of Legality?

    i.    Patrick Glenn, “Legal Cultures and Legal Traditions” in , “Epistemology and Comparative Law: Contributions from the Sciences and Social Sciences” in Epistemology and Methodology of Comparative Law, 2004.
    ii.    Peter D. Rush, ‘Surviving Common law: Silence and the Violence internal to the legal sign”, Cardozo Law Review, 27(2), 2005.(Link found Here)
    iii.    Clifford Geertz, “Fact and Law in Comparative Perspective”, in Local Knowledge. Link found
 
Module 2. Comparative Law and Constitutionalism  

Week 4
Mapping the Lives of (Black Letter) Law: the Diffusion of Law, Legal Transplants and other such Theories.

    i.    William Twining, “diffusion of law: a global perspective”
    ii.    William Ewald, “the logic of legal transplants”, AJCL 43(4), 1995. Link
    iii.    Alan Watson, “Legal Transplants to legal Formats”, AJCL 43(3), 1995.Link
    iv.    Pierre Legrand, “What ‘Legal Transplants’?” in Adapting Legal Cultures, 2001.
 
Week 5

Culture question in comparative methodologies

    i.    John and Jean Comaroff, “Colonialism, Culture and Law”, Law and Social Inquiry 2001. Link
    ii.    David Westbrook, “Theorising the Diffusion of Law”, Harvard International Law Journal, 47(2), 2006.Link
    iii.    Upendra Baxi, “The Colonialist Heritage” in Comparative Legal Studies: Traditions and Transitions, 2001.

Module 3: Crisis of Hegemony? Universality of Law after the ‘Pluralism Effect’ 

Week 6

Comparative Constitutionalism: the Dominant (Universalist) Tradition

    i.    Charles Epp, The Rights Revolution, 1999.
    ii.    Bruse Ackerman, The Rise of World Constitutionalism
    iii.    Andrei Marmor, “Should like Cases be Treated Alike” in Law in the Age of Pluralism, 2007.

Week 7
Legal Pluralism: Old and New

    i.    Laura Nader, “Hegemonic Processes in Law: Colonial to Contemporary” in The Life of the Law, 2002.
    ii.    Brian Tamanaha, “A Non-Essentialist version of Legal Pluralism” Journal of Law and Society, 27(2), 2000.
 
Module 4: Comparative law and Cultural Difference: Questions of Methodology, Epistemology and Ontology 

Week 8
Modern Constitutions and the ‘Mediations’ of Cultural Difference

    i.    Upendra Baxi, ‘Constitutionalism as a site of State formative practices’, Cardozo Law Review
    ii.    Partha Chatterjee, Politics of the governed.
    iii.    Robert W. Cox, “Conceptual Guidelines for a Plural World” in The Political Economy of a Plural World, 2002.
    iv.    Joseph Pugliese, “Rationalised Violence and Legal Colonialism” Cardozo Studies in Law and Literature, 1996.
 
Week 9
The Elusive Uni-formalism:  Gender, Identity and experiences of Citizenship in a Plural World

    i.    Susanne and Lloyd Rudolph, “Living with difference in India: Legal Pluralism and Legal Universalism in historical context”, in Religion and Personal Law in Secular India.
    ii.    Ayelet Shachar, “The Perils of Multicultural Accommodation” in Multicultural Jurisdictions: Cultural Differences and women’s rights 2004.
    iii.    Mohammad Mazher Idriss, “Laicite and the banning of the hijab in France” Legal Studies.Link

Week 10
Modernity of Tradition? Cultural Defence in Modern Law

    i.    Gordon R. Woodman, “The Cultural Defence in English Common Law” in Multicultural Jurisprudence: Comparative Perspectives on Cultural Defence, 2009.
    ii.    Sarah Song, “The ‘Cultural Defense’ in American Criminal Law” in Justice, Gender and the politics of multiculturalism, 2007.
    iii.    The Khap Panchayat debates on India (Material will be supplied later)
 
Week 11
‘Outside the Margins’: Cultural Politics of Identity versus Citizenship

    i.    John and Jean Comaroff, “Law and Disorder in the Postcolony: An Introduction”, in Law and Disorder in the Postcolony, 2006.
    ii.    Reflections on Liberalism,Policulturalism and ID-ology:Citizenship and Difference in South Africa. John and Jean Comaroff, Social Identities, 9 (4),2003.
    iii.    Peter Geschiere, “Witchcraft and the limits of the law’, in Law and Disorder in Postcolonial 2006. Link


Week 12
The (Im)possibility of Universal Human rights? Interrogating Relativism

    i.    AAA statements on universal human rights
    ii.    Ashis Nandy, “Towards New Cosmopolitanism”, in Inter-Asia cultural studies 1998.Link
    iii.    Macau Mutua, “Complexity of Universalism in Human Rights”, in Human Rights with modesty: the problem of universalism 2004.Link
 
Week 13
Pluralising the Universal: Human rights beyond the ‘Cultural Impasse’

    i.    Upendra Baxi, “Two Notions of Human Rights: Modern and Contemporary”, in Future of Human Rights, 2oo6.
    ii.    Alain Supiot, Hom Juridicus: On the Anthropological Function of the Law, Ch.6
    iii.    Gayatri Spivak, “Righting Wrongs”, in Amnesty Lectures on Human Rights-2002, 2004.
    iv.    Terence Turner, “Human Rights and Human Difference”, Journal of Anthropological Research, 1997.Link
 
Week 14 

Rethinking the comparative constitutionalism project

    i.    Anton Schutz, “Thinking the law with and against Luhmann, Legendre and Agamben”, Law and Critique, 11, 2000.Link
    ii.    Upendra Baxi, “Transformative Constitutionalism”.
    iii.    Wolf Heydebrand, “From Globalisation of Law to Law under Globalisation” in Adapting Legal Cultures, 2001.
    iv.    Boaventura de Sousa Santos and Ce´sar A. Rodrı´guez-Garavito, “Law, politics, and the subaltern in counter-hegemonic globalization” in Law and Globalisation from Below, 2005.




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