Constitutionalism and Democracy
- The course aims to provide an introduction to the most important concepts related to constitutionalism, and to analyze them from normative and empirical perspectives.
- The aim is also to engage in a critical dialogue with the meaning and assessment of the introduced concepts.
- capable of connecting normative and institutional questions
- able to reflect on salient contemporary issues from a conceptually and theoretically informed perspective
- develops a more careful idea on the roots and relevance of human rights
- able to discover the legal and institutional context of contemporary problems
- able to situate contemporary problems pertaining democracy, rights, elections, press freedom, etc. in the framework of the constitutionalism vs. democracy debate
- Basic concepts: constitution, constitutionalism and democracyThe aims of the first pair of sessions are twofold. On the one hand, the fundamental concepts related to the topic of the course – such as constitutions, constitutionalism and democracy – have to be defined, and students should obtain a critical approach towards the competing definitions on these notions. On the other hand, the heart of the conceptual tension between constitutionalism and democracy will be introduced.
- Constitution-makingThe first specific topic within the course is constitution-making, both from its normative and institutional perspectives. In the former regard, we will focus on the concept of constituent power, and the competing approaches in the relevant literature on its understanding. In the latter regard, both the structural (ideal conditions for constitution-making, procedural stipulations) and agency-specific (what kind of institutions, through what selection procedures, by what mechanisms of accountability) issues will be under scrutiny.
- The notion of constitutional rightsThese sessions will be dedicated to a primarily theoretical scrutiny on the notion of rights: their definition, types, origins, justification, applications and limitations. Concerning the overarching question of the course (namely, how democratic procedures and constitutional limitations can be reconciled), a particular emphasis will be on the relationship between deontological and instrumental justifications of fundamental rights.
- Controversial topics: social and group-specific rightsFollowing the general introduction to the topic of rights, their two most controversial groups are discussed: socio-economic and group-specific rights. In the first topic, the core issue is concerning the dividing line between rights and policies; on the differences between guaranteeing rights and endeavoring their provision. In the second topic, the core issues will be justification of human rights as well as the possible tension between individual and groupspecific rights.
- Separation of powers and the rule of lawFollowing the topic of rights, a core feature of constitutionalism as a normative concept, the rule of law will be discussed. The core issue through these sessions will be the differentiation between rule by law and rule of law; more precisely, the institutional features of a democratic polity where holders of power are substantially limited by the constitutional framework.
- Constitutional adjudicationThis topic addresses one of the sharpest dilemmas linked to constitutionalism, formulated as the following: even if one accepts that constitutional provisions are above outcomes of most democratic procedures, who can determine the exact meaning of constitutional provisions? As a first step, the legitimacy of judicial review will be scrutinised. In this regard, various answers to the so-called „counter-majoritarian difficulty‟ will be reviewed. After dealing with the normative foundations, the various institutional solutions for judicial review will be compared.
- States of emergencyIn the final phase of the course is dedicated to the limits of constitutionalism. By investigating various constitutional solutions for dealing with extraordinary situations, the main question will be: how is it possible to retain constitutional supremacy in situations where quick and decisive leadership decisions are required? The issue will be primarily investigated from a comparative perspective
- Militant democracy, constitutional erosion and abusive constitutionalismThe last topic of the course rather focuses on the failures of constitutionalism, when it fails to effectively limit holders or power, or even worse: constitutions become suppressive instruments in the hands of majority rulers. A specific focus will be directed on the question of preventing these failures while the constitutional order is in control; in this regard the normative justifications and institutional aspects of the notion called „militant democracy‟ will be discussed.
- Militant democracy
- Global constitutionalism
- Position papers
- Exam preparation
- In-class ParticipationIn the class participation components, the following qualities can result in a maximal grade: frequency and concision of class participations originality of class contributions connection between preparation materials and class contributions contribution to class discussion dynamics participation in maintaining an inspiring class environment. In case a student is unable to be present at a class session (within the limits stipulated by the University’s general regulations, (s)he is expected to submit a position paper based on the readings of the given topic; in these cases, the deadline depends on the agreement between the student and the instructor.
- PresentationOne paper has to be presented in the form of a 15-20 minutes-long oral presentation (PR). Depending on the class size, there could be an opportunity for group presentations - in these cases the position paper can be submitted in the form of a co-authored paper. In the presentation, the following qualities can result in a maximal grade: conceptual rigor and analytical engagement clear connection between conceptual and empirical elements clarity and sharpness of argument thought-provoking elements
- Position paperIn the position papers, the following qualities can result in a maximal grade: identifying the key issues related to the topic a good balance between the usage of the assigned readings and external literature/sources clarity, sharpness and robustness of argument
- Position paper 2In the position papers, the following qualities can result in a maximal grade: identifying the key issues related to the topic a good balance between the usage of the assigned readings and external literature/sources clarity, sharpness and robustness of argument
- Final examThe final exam is an 80 minutes-long open-book exam, focusing on the problem-solving and argumentative skill of the students related to the subject-matter
- Interim assessment (3 module)0.3 * Final exam + 0.1 * In-class Participation + 0.2 * Position paper + 0.2 * Position paper 2 + 0.2 * Presentation
- Rosenfeld, M., & Sajó, A. (2012). The Oxford Handbook of Comparative Constitutional Law. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsbas&AN=edsbas.4E3D3A53
- Sajó, A., & Uitz, R. (2017). The Constitution of Freedom : An Introduction to Legal Constitutionalism. Oxford: OUP Oxford. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsebk&AN=1630779
- Choudhry, S. (2008). Constitutional Design for Divided Societies : Integration or Accommodation? Oxford: OUP Oxford. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsebk&AN=467636
- Kymlicka, W. (DE-588)114420254, (DE-576)168349779. (1995). Multicultural citizenship : a liberal theory of minority rights / Will Kymlicka. Oxford [u.a.]: Oxford University Press [u.a.]. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edswao&AN=edswao.046028315