Topics in Comparative Constitutionalism - 'The Craft of Judging in a Constitutional Democracy'

Seminar 3: The Craft of Judging in a Constitutional Democracy (with Kate O’Regan)

In this seminar, we will discuss some judicial and scholarly perspectives on judicial craft under Bills of Rights.  Using the example of the Fourie same-sex marriage case in South Africa, we will explore some of the challenges which judges face when approaching difficult constitutional issues.  In particular, we will look at the role of the courts vis-à-vis the other branches of government, exploring how best to characterise the relationship between these branches.

Reading:

*Kate O’Regan, Minister of Home Affairs v Fourie (Same-Sex Marriage Case, Constitutional Court of South Africa, CCSA, 2005) and Bato Star v Minister for Environmental Affairs (CCSA, 2004), esp judgments by Justice Kate O’Regan

*Aileen Kavanagh, ‘Judge as Partner’ (draft paper)

In this seminar series, we will discuss some key topics in comparative constitutionalism, drawing out some of the theoretical questions which underpin them.

The seminars will be led by Aileen Kavanagh and various visiting speakers.  Each seminar will start with a short presentation by each of the speakers, followed by a roundtable discussion.  The seminars will look closely at just two or three readings, mostly from recently published work or work-in-progress by the speakers.  The readings are hyperlinked below so that people can read them in advance and join in the roundtable discussion. 

The seminar is not associated with any particular course or examination, but all are welcome to attend.  The seminar may be of interest to graduate students in the Law Faculty, especially BCL/MJur students taking Constitutional Theory, Comparative Human Rights and Comparative Public Law, or to research students working in the areas of constitutional law, constitutional theory or comparative constitutional law.