MLG101 | Comparative Public Law and Governance

The roots of public law have been traced to Roman law by some authors, while others maintain that it emerged from a broader set of political changes in Medieval Europe. The modern understanding of public law corresponds to the areas of law that directly govern relations between citizens and the State. Although it is routinely conflated with practical fields such as Constitutional Law and Administrative Law, the principles of public law have permeated through all conceivable areas of legal theory as well as practice. The borrowing of legal ideas and institutions has been a long documented practice and the judiciary often benefits from relying upon decisions made by courts from other jurisdictions. In that sense, the field of ‘Comparative Public Law and Governance’ is focussed on the evolution of political and legal institutions across different national jurisdictions and legal traditions, especially in respect of the understanding of rights and ideas of public accountability. With a widening of governmental functions, the presence of the state in newer sectors is also foregrounding a range of novel forums and strategies for ensuring accountability on part of state actors.

Module I of this course is devoted towards understanding the processes by which ‘legal transplants’ take place as well as their long-term consequences in respect of the ‘diffusion of legal cultures’ across disparate jurisdictions. We will concentrate on the causative elements behind legal transfers at different points of history such as colonialism, the rise of global capital, the emergence of multilateral institutions, the politics of economic development and the exchange of ideas through academic and professional endeavors. In other words, we will first ask why and how do legal transplants take place, both in a historical and contemporary sense. That will enable us to proceed to the subsequent frames of inquiry, wherein we can examine the parameters for assessing the relative success and failure of legal transplantation in the long-run.

In Module II, we will concentrate on the considerations of methodology that have developed in the field of Comparative Public Law. We will engage with what has been respectively described as the universalist, nationalist, functionalist and colonialist approaches that can be adopted in order to pursue comparative legal studies. A meaningful exploration of these approaches requires an appreciation of the intellectual continuities between the fields that are now described as ‘Comparative Politics’ and ‘Comparative Public Law’. This will take us towards a more informed discussion on how we should choose and implement the tools of comparative inquiry as part of legal research.

In Module III, we will work through representative literature that examines how some significant ideas about the structures of governance have evolved across national jurisdictions. In particular, we will look at the different approaches to the ideas of separation of powers, federalism, electoral representation, consociationalism and other forms of power-sharing in divided societies. We will also seek to compare national jurisdictions that have implemented affirmative action measures to account for historically entrenched forms of discrimination as well as persistent forms of inequality. The objective is to demonstrate the wide variety in the philosophical and instrumental approaches adopted for the design of public institutions, even if we were to exemplify a set of national jurisdictions that are broadly described as liberal democracies.

In Module IV, we will examine the theoretical frameworks for describing how adjudicatory bodies learn from institutions located in other jurisdictions. Given the proliferation of international and regional adjudicatory bodies, it is important to think about ‘vertical’, ‘horizontal’ and ‘mixed’ forms of judicial communication. Over the last three decades, there has been a virtual flood of scholarly writing on how domestic courts often look to foreign precedents for deciding cases before them. The attitudes range from that of a cooperative transjudicial dialogue to a self-conscious preference for exceptionalism in these matters. We will also try to focus on how these trends are playing out in the South Asian context. This will also allow us to map how increasing judicial intervention in political controversies can be seen as a global trend. It raises familiar objections to expansive judicial review in a democratic set-up, especially when unelected judges rule on socio-economic issues that have a larger impact on the population of a country. To conclude the course, we will look at recent scholarly contributions that examines whether liberal democracies are in decline owing to the rise of populist leaders.

Module 1      The Discipline of Comparative Law 7 Sessions                          (14 Class Hours)

Module 2      Methodology in Comparative Public Law 7 Sessions               (14 Class Hours)

Module 3      Systems of Governance 8 Sessions                                               (16 Class Hours)

Module 4       Judicial Borrowing and Current Debates 8 Sessions               (16 Class Hours)