Law of Democracy

This subject is not offered in 2016.

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.

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 the Disability Liaison Unit: www.services.unimelb.edu.au/disability/

This subject addresses the constitutional law involving the design of democratic institutions and democratic processes. It aims to explore the way in which the legal rules and frameworks that structure the democratic process in different countries shape the kind of democracy those countries experience. It will explore issues such as tensions between majority and minority political representation; the role of political parties; campaign finance regulation; the individual right to vote and its limits; the design of election districts; alternative ways of designing elections and related issues. The syllabus will draw on materials from a number of countries, including the United States, Australia, Turkey, Germany, Israel and South Africa, among others. The lecturer Professor Rick Pildes is co-author of the casebook that created this field of study, The Law of Democracy (4th ed. 2012), as well as a lawyer who has been involved in numerous cases in the field.

This subject will examine some of the salient issues presented in cases from Australia and around the world. Principal topics will include:

• The role of courts in overseeing the democratic process
• Representation of minorities through proportional representation and drawing of district lines for constituencies
• The legal framework for transitions to democracy from authoritarian rule
• Party funding and the problem of how money influences politics
• Limitations on who can participate in elections through eligibility requirements or party membership
• How different legal systems address the problem of anti-democratic organisations in the electoral process.

A student who has successfully completed this subject should:

• Understand the tension between constitutional requirements and the scope of decision making left to politics
• Understand the tension between rights-based jurisprudence and structural reviews of democratic rules
• Have an appreciation for the constitutional cases from many countries that address how a democracy functions
• Have an understanding of the problem of ensuring adequate minority representation in elections designed to create democratic majorities.

Take-home examination (100%)

Core subject materials will be provided free of charge to all students. Some subjects require further texts to be purchased. Details regarding any prescribed texts will be provided prior to the commencement of the subject.

This subject is not available as a breadth subject.

This subject has a quota of 30 students. Please refer to the website www.law.unimelb.edu.au/masters/courses-and-subjects/subjects/subject-timing-and-format for further information about the management of subject quotas and waitlists.