Course Location: Please see the "Intensive Course Schedule" under Schedules and Timetables (http://www.law.utoronto.ca/academic-programs/schedules).

This section of the course is for students studying remotely. This course will meet via audio-visual conference. To enrol in this course all students must meet or exceed the tech requirements for enrolment in University of Toronto courses, which can be found here [https://www.viceprovoststudents.utoronto.ca/students/tech-requirements-online-learning/].

Note: Attendance at intensive courses is mandatory for the duration of the course.

Most Constitutions tend to be restrictive with respect to the democratic ideal. In fact, our constitutional structures may be characterized by a “hypertrophy of counter-majoritarian practices and arrangements” (Unger 1996, 72, 198).  They commonly comprise numerous “limiting” principles and “disabling” clauses, which can cogently be argued to hinder unjustifiably the possibilities of collective self-government.  These tools include not only judicial review, but also a “natural law” approach to rights; presidential veto (and sometimes, veto by quasi-monarchical Executives); a model of political representation based on the “separation” between elected and electors; an elitist legislative power (particularly, through the institution of the Senate); a clear preference for “internal” rather than “external” or “popular” controls; a system of “checks and balances” that aims to provide “veto points” to the different sections of society, rather than facilitate a democratic conversation about the Constitution, etc.

Those institutional arrangements were born to respond to ideals and needs of the 18th century, and to a large extent they fulfilled their purpose. At the present time, however, we live under a completely different paradigm that is distinguished by its strong democratic character. The present time is marked by what we could call the fact of democracy.  This is to say the shared conviction that our voice must be considered for the decision of those matters that significantly affect our lives.  Therefore, we live today under a growing tension between the rules we created and the needs we have--a tension between our 18th Century’s constitutional structure and our 21th Century’s needs and, more particularly a tension between our 21th Century’s expectations, convictions and demands, and our 18th Century’s restrictive and exclusive institutional system.  The described tensions create a strong democratic dissonance: we have democratic claims, which our constitutional structure does not help us to satisfy, but rather obstructs. This would explain the widespread feeling of civic disengagement and discomfort that seems distinctive of our time.

The purpose of the seminar is to explore these existing tensions between constitutionalism and democracy, both at a theoretical and practical level, and do so with help of examples mainly coming from the Americas.

The seminar will be organized around the discussion of Professor Gargerella’s work in progress, a draft of a book entitled, The Law as a Conversation Among Equals. The seminar will thus provide a unique opportunity to students—to read critically with the author a complete work that covers many of the most pressing topics in constitutional theory and which will be revised in light of the seminar and the students’ papers. (At the same time, of course, this will be a valuable resource for Professor Gargerella when it comes to making the final revisions to his book.) There will also be a list of suggested readings for each topic, which the students may use to deepen their knowledge of the different theoretical problems addressed during the course.

Please note that the book chapters are short and written to be most accessible. So reading the whole book is easily managed over a week. Please also note that students may write their paper on one or more of the many themes covered by the book and the suggested readings should help with that task. If you wish, you may also write a critical review of the whole, or of part of the book. Professor Gargarella welcomes criticism. He and Professor Dyzenhaus will collaborate in grading and commenting on all the papers.

Evaluation
Students will be evaluated based on a final paper of 2500 to 3000 words. Papers must be delivered to the Records Office by 4:00 p.m. on February 1, 2021.
Academic year
2020 - 2021

At a Glance

Second Term
Credits
1
Hours
12

Enrolment

Maximum
22

20 JD
2 LLM/SJD/MSL/NDEGS/SJD U

Schedule

Via AV Conference:

Monday, January 4, 2020: 10:00 am - 12:30 pm
Tuesday, January 5, 2020: 10:00 am - 12:30 pm
Wednesday, January 6, 2020: 10:00 am - 12:30 pm
Thursday, January 7, 2020: 10:00 am - 12:30 pm
Friday, January 8, 2020:10:00 am - 12:00 pm