Constitution Making

This subject has the following teaching availabilities in 2016:

This subject has a quota of 30 students. Please refer to the Melbourne Law Masters website for further information about the management of subject quotas and waitlists.

136-150 hours

The pre-teaching period commences four weeks before the subject commencement date. From this time, students are expected to access and review the Reading Guide that will be available from the LMS subject page and the subject materials provided by the subject coordinator, which will be available from Melbourne Law School. Refer to the Reading Guide for confirmation of which resources need to be read and what other preparation is required before the teaching period commences.

Melbourne Law Masters Students: None

JD Students: Successful completion of all the below subjects:

Applicants without legal qualifications should note that subjects are offered in the discipline of law at an advanced graduate level. While every effort will be made to meet the needs of students trained in other fields, concessions will not be made in the general level of instruction or assessment. Most subjects assume the knowledge usually acquired in a degree in law (LLB, JD or equivalent). Applicants should note that admission to some subjects in the Melbourne Law Masters will be dependent upon the individual applicant’s educational background and professional experience.

The Melbourne Law Masters welcomes applications from students with disabilities. The inherent academic requirements for study in the Melbourne Law Masters are:

• The ability to attend a minimum of 75% of classes and actively engage in the analysis and critique of complex materials and debate;
• The ability to read, analyse and comprehend complex written legal materials and complex interdisciplinary materials;
• The ability to clearly and independently communicate in writing a knowledge and application of legal principles and interdisciplinary materials and to critically evaluate these;
• The ability to clearly and independently communicate orally a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
• The ability to work independently and as a part of a group;
• The ability to present orally and in writing legal analysis to a professional standard.

Students who feel their disability will inhibit them from meeting these inherent academic requirements are encouraged to contact Student Equity and Disability Support.

More than 90 new constitutions have been made for countries across all regions of the world since the fall of the Berlin wall in 1989. Currently, constitution-making is actively underway in a range of states and pending in others. This concentrated burst of activity has given rise to a range of new ideas about the nature and purpose of constitutions, constitutional solutions to contemporary problems, the processes of constitution-making and the proper role of international actors. This subject explores these issues, with particular reference to a series of topical case studies, including Fiji, Iraq, Kenya, Nepal, Timor Leste and Yemen. The lecturers are constitutional scholars with practical experience in the field who add to the excitement and relevance of the subject

Principal topics include:

• Nature, functions and limitations of constitutions
• Circumstances in which constitutions are likely to be renewed or substantially changed
• Influences on new constitutions
• Substance of constitutions
• Phases of constitution-making:
  • Peace process (if any)
  • Setting the agenda
  • Design and writing
  • Approval and adoption
  • Implementation
  • Interpretation
  • Selected case studies drawn from Egypt, Fiji, Indonesia, Iraq, Kenya, Pakistan, the Philippines, Solomon Islands, South Africa, Sri Lanka, Swaziland, Timor Leste, Tunisia, Yemen and Zimbabwe among others.

A student who has successfully completed this subject will:

• Have an advanced and integrated understanding of constitution-making processes and constitutional development and be able to apply this understanding in diverse contexts
• Understand and be able to maximise the role that constitutions can play in conditions of development, transition of various kinds and conflict resolution
• Have an advanced understanding of the theoretical problems that arise in constitution making and their implications for the practice of constitution-making
• Be aware of, and able to critically interpret, analyse and evaluate, the relevance of a range of potential influences on constitutional design in circumstances of development and transition, including international influences
• Be aware of, and able to critically choose between, substantive constitutional mechanisms to meet particular goals and resolve particular problems
• Have a sophisticated understanding of the phases of constitution making, the issues likely to require resolution in each phase and the options for dealing with them
• Understand the practical experience of past attempts at constitution making in selected countries
• Have the cognitive and technical skills to actively develop options and strategies for the process of constitution making and the substance of new constitutional provisions, in the circumstances of other countries in development or transition
• Be able to demonstrate and apply expertise in the field of constitution-making and constitutional process design
• Be able to be an engaged participant in contemporary and emerging debates regarding constitution-making including choice of institutions, public participation, inclusion including the inclusion of women and other marginalised groups, structure of the state, rights and territorial arrangements.

• Take-home examination (5,000-6,000 words as specified in the subject reading guide) (100%) (8 - 11 July)
  or
• 10,000 word research paper (100%) (15 August) on a topic approved by the subject coordinator

A minimum of 75% attendance is a hurdle requirement.

Specialist printed materials will be made available free of charge from the Melbourne Law School prior to the pre-teaching period.

This subject is not available as a breadth subject.