Constitutional Design and Democracy (LAWS90304)

If constitutional law can be used to erode a democratic system, can it also be used to make it more resilient?  

This subject deals with the relationship between constitutional design and the decay and strengthening of democracy, from an international perspective. For years, democratic decay — the ‘slow death’ of liberal democracy — has been a central preoccupation in comparative constitutional law, affecting states across the Global North and Global South as diverse as the USA, Poland, Brazil, India and Indonesia, while democratic disruption has affected states such as Australia, Germany and the UK.  

We will focus on how constitutional law and constitutional thought has been central to understanding these dynamics. Further, we concentrate on how constitutional law is central to understanding the rapidly developing global discourse on how to restore, renew, and strengthen democracy through legal and institutional reform and re-design. We will address questions about the processes of constitutional amendment, the place of legislatures in constitutional decay and renewal, the roles of independent courts and state bodies as democracy-protectors, channels for public participation, and the potential and limitations of constitutional design to ‘build in’ resilience.  

Intended learning outcomes

A student who has successfully completed this subject should be able to: 

• Analyse the dynamics of democratic regression, globally and in the Asia-Pacific region, including Australia.
• Critically engage with the rapidly expanding scholarship on the role of law, especially constitutional law, in these dynamics.
• Evaluate the relationship between constitutional law and democratic governance, including different dimensions of representative, participatory, and deliberative democracy.
• Assess and critique the history and development of what have become 'standard' democratic institutions and how the practice of constitutional design has developed, especially since the 1990s.
• Discuss and engage in critical emerging debates on the role and limitations of constitutional design in repairing, and enhancing the resilience of, contemporary democratic systems.
• Analyse and communicate effectively these developments and the academic commentary on them from a comparative perspective.

Generic skills

• A capacity to identify, understand and evaluate major new developments in public law.
• The ability to think conceptually and analytically about the relationship between institutions, and between institutions and citizens, in public law.
• An appreciation of how principle and practice change over time and the ability to analyse how and why.
• Advanced research skills in understanding and explaining institutional and socio-legal arrangements in sufficient detail to be reliable for the purposes of sustaining an argument.
• An ability to think creatively about problems and solutions that lie at the interface between public law and different research fields and disciplines.
• Skills in the application of comparative method.