POLb1118 Constitutional Politics

Faculty of Social Studies
Spring 2021
Extent and Intensity
1/1/0. 5 credit(s). Type of Completion: zk (examination).
Teacher(s)
Mgr. et Mgr. Jiří Baroš, Ph.D. (lecturer)
JUDr. Mgr. Ivo Pospíšil, Ph.D. (lecturer)
Mgr. Ján Tomaštík (lecturer)
Guaranteed by
Mgr. et Mgr. Jiří Baroš, Ph.D.
Department of Political Science – Faculty of Social Studies
Contact Person: Mgr. Lucie Pospíšilová
Supplier department: Division of Politology – Department of Political Science – Faculty of Social Studies
Timetable
Tue 8:00–9:40 U41
Course Enrolment Limitations
The course is only offered to the students of the study fields the course is directly associated with.
fields of study / plans the course is directly associated with
there are 29 fields of study the course is directly associated with, display
Course objectives (in Czech)
The aim of the course is to provide students with a complex view on philosophical basis of modern constitutionalism. After the introductory, mainly conceptual, lesson on fundamental concepts, democracy, and constitutionalism, the course begins with the important difference between ancient and modern constitutionalism. It traces the whole development of modern constitutionalism with the concepts with which it is logically connected, i. e. sovereignty, fundamental rights, constitutive and constituted power, separation of powers, and rule of law. It further focuses on the crucial experience of American and German post-war constitutionalism as well as on the constitutionalism in Visegrád group countries (mainly the most familiar Czech case) and at the European level.
Learning outcomes (in Czech)
Through this course, students will be able to understand the whole process of emergence of modern constitutionalism. They will be able to analyze crucial theoretical concepts (separation of powers, fundamental rights, rule of law) connected with its history. Moreover, students will be able to critically evaluate disagreements in political philosophy and constitutional theory concerning such hot issues as legitimacy of constitutional review and constitutionalism at European level. At the end of this course, students shall be able to characterize the most important developments of modern constitutionalism within thorough, and philosophically non-naïve perspective.
Syllabus (in Czech)
  • 1. Introduction (2. 3.) 2. Why Constitutionalism? Why Constitutional Democracy? (9.3.) Compulsory reading: Murphy, Walter F. 2007. Constitutional Democracy. Creating and Maintaining a Just Political Order. Baltimore: The Johns Hopkins University Press, 108-146. 3. American Constitutionalism (16. 3.) Compulsory reading: Breyer, Stephen 2010. Making Our Democracy Work. New York: Alfred A. Knopf, 3-72. 4. German Constitutionalism (23. 3.) Compulsory reading: Kommers, Donald P., Miller, Russell A. 2012. The Constitutional Jurisprudence of the Federal Republic of Germany. Durham: Duke University Press, 42-76. 5. Varieties of Constitutionalism Today and the Separation of Powers (30. 3.) Compulsory reading: Blokker, Paul 2013. New Democracies in Crisis? A Comparative Constitutional Study of the Czech Republic, Hungary, Poland, Romania and Slovakia. London: Routledge, 13-44. Kosař, David, Baroš, Jiří, Dufek, Pavel 2019. The Twin Challenges to Separation of Powers in Central Europe: Technocratic Governance and Populism. European Constitutional Law Review, vol. XV, no. 3, 427-461. 6. The Puzzle of State Neutrality: State and the Enforcement of Morality (JT) (6.4.) Compulsory reading: George, Robert P. 2008. „The Central Tradition – Its Value and Limits“ in Virtue Jurisprudence. Eds. Colin Farelly and, Larry B. Solum. Virtue Jurisprudence. Palgrave Macmillan, 24-50. Patten, Alan. 2012. Liberal Neutrality: A Reinterpretation and Defense. The Journal of Political Philosophy, vol. 20, no. 3, 249-272. 7. Conflicting Constitutional Rights. On the Principle of Proportionality (ZČ) (13.4.) Compulsory reading: Alexy, Robert 2012. Rights and Liberties as Concepts. In: The Oxford Handbook of Comparative Constitutional Law. Eds. Michel Rosenfeld and András Sajó. Oxford: Oxford University Press, 283-297. Kumm, Matthias 2017. „Is the Structure of Human Rights Practice Defensible? Three Puzzles and Their Solution“ In: Proportionality. New Frontieres. New Challenges. Eds. Vicki S. Jackson a Mark Tushnet. Cambridge: Cambridge University Press, 51-74. 8. Legitimacy of Constitutional Review – First discussion session (20.4.) Recommended Reading: Fallon, Richard, Jr. 2008. The Core of an Uneasy Case for Judicial Review, Harvard Law Review, 121, 1693-1736. Waldron, Jeremy 2006. The Core of the Case against Judicial Review. The Yale Law Journal, 115, 1346-1406. 9. Czech Constitutionalism (IP) (27. 4.) Compulsory reading: Pospíšil, Ivo 2015. Legal System and Judiciary. In: Stanislav Balík et al. Helsinki Process, Velvet Revolution of 1989 and the Czech Transformation. Praha: CEVRO, 62-71. Sadurski, Wojciech 2003. Constitutional Courts, Individual Rights, and the Problem of Judicial Activism in Postcommunist Central Europe. In: Systems of Justice in Transition. Central European Experiences since 1989. Eds. Příbáň, Jiří; Roberts, Pauline and James Young. Aldershot: Ashgate, 13-28. 10. Does Populist Constitutionalism Exist? – Second discussion session (4. 5.) Recommended reading: Blokker, Paul 2018. Populist Constitutionalism. In: Routledge Handbook of Global Populism. Ed. Carlos de la Torre. London: Routledge, 113-127. Halmai, Gábor 2019. Populism, authoritarianism and constitutionalism. German Law Journal, vol. 20, no. 3, 296-313. 11. European Constitutionalism (IP) (11. 5.) Compulsory reading: Pospíšil, Ivo 2011. The Constitutional Court of the Czech Republic and European Integration in the Context of Judicial Dialogs. Lecture held at the European Graduate School for Social Sciences, Brno-Telč. Walker, Neil 2012. The Place of European Law. In: The Worlds of European Constitutionalism. Eds. Gráinne de Búrca, J.H.H. Weiler, Cambridge: Cambridge University Press, 57–104. Weiler, Joseph H. H. 2016. Dialogue and Distrust: the Accession of the EU to the ECHR. In: European Constitutionalism in the Context of Judicial Dialogue. Brno: Constitutional Court of the Czech Republic, 11-18. Voluntary reading (in Czech): Pospíšil, Ivo, Katarína Šipulová 2014. Evropský konstitucionalismus. In: M. Pitrová et al. Postlisabonské procesy v Evropské unii. Brno: Masarykova univerzita, 57–82. 12. Self-Study Week (18. 5.) 13. Precautionary vs. Optimizing Constitutionalism and Emergencies (25. 5.) Compulsory reading: Vermeule, Adrian 2014. The Constitution of Risk. Cambridge: Cambridge University Press, 27-87.
Literature
    required literature
  • Pospíšil, Ivo 2015. Legal System and Judiciary. In: Stanislav Balík et al. Helsinki Process, Velvet Revolution of 1989 and the Czech Transformation. Praha: CEVRO, 62-71.
  • Murphy, Walter F. 2007. Constitutional Democracy. Creating and Maintaining a Just Political Order. Baltimore: The Johns Hopkins University Press.
  • Kommers, Donald P., Miller, Russell A. 2012. The Constitutional Jurisprudence of the Federal Republic of Germany. Durham: Duke University Press.
  • Blokker, Paul 2018. Populist Constitutionalism. In: Routledge Handbook of Global Populism. Ed. Carlos de la Torre. London: Routledge, 113-127.
  • Alexy, Robert 2012. „Rights and Liberties as Concepts. “ In: The Oxford Handbook of Comparative Constitutional Law. Eds. Michel Rosenfeld and András Sajó. Oxford: Oxford University Press, 283-297.
  • Kavanagh, Aileen 2016: The Constitutional Separation of Powers. In: Philosophical Foundations of Constitutional Law. Eds. David Dyzenhaus, and Malcolm Thorburn. Oxford: Oxford University Press, 221-239.
  • Breyer, Stephen 2010. Making Our Democracy Work. New York: Alfred A. Knopf.
  • Walker, Neil 2012. The Place of European Law. In: The Worlds of European Constitutionalism. Eds. Gráinne de Búrca, J.H.H. Weiler, Cambridge: Cambridge University Press, 57–104.
  • Weiler, Joseph H. H. 2016. Dialogue and Distrust: the Accession of the EU to the ECHR. In: European Constitutionalism in the Context of Judicial Dialogue. Brno: Constitutional Court of the Czech Republic, 11-18.
  • Blokker, Paul 2013. New Democracies in Crisis? A Comparative Constitutional Study of the Czech Republic, Hungary, Poland, Romania and Slovakia. London: Routledge.
  • Kosař, David, Baroš, Jiří, Dufek, Pavel 2019. The Twin Challenges to Separation of Powers in Central Europe: Technocratic Governance and Populism. European Constitutional Law Review, vol. XV, no. 3, s. 427-461.
  • Halmai, Gábor 2019. Populism, authoritarianism and constitutionalism. German Law Journal, vol. 20, no. 3, 296-313.
Teaching methods (in Czech)
The course is taught in the form of lectures and seminars. Students are encouraged to participate actively in the seminars by posing questions of clarification and bringing up topics for discussion. Students are expected to read the required reading(s) for each seminar. Discussion sessions serve to improve the ability of students to summarize an issue and to evaluate it critically in a debate with their colleagues. Final papers serve to improve the ability of students to analyze a topic relevant to the course.
Assessment methods (in Czech)
Students will receive a final grading for the semester based on the following components: Participation in one of two discussion session, which will deal with the legitimacy of constitutional review and populist constitutionalism. For each session three groups will be created; the first one will defend a positive stance to the question and defend that position, the second will take the opposing stance. The third group will preside over the contest and act as referees. Students will create groups no later than the end of the third week of the term. These groups should be formed via the information system. Two weeks before the debate, the defenders and opponents will submit a seven-page report with an outline of their main arguments. Reports are to be uploaded to the Information system of MU (“Homework Vault / Odevzdávárna”). It is sufficient to present the main points and sources of your arguments here, without engaging in a detailed argumentation; however, the report must be given a systematic form. In the first section, more general and theoretically anchored argumentative frameworks should be developed, while in the second and longer section, it should be applied to the subject matter at hand. One week before the debate, having seen the main arguments of the opposing group, both parties will prepare at least three questions to be posed to the opposing group, both in advance and during the debate. These questions should focus on the most problematic elements of the argumentation proposed by the opposing group to expose inadequacies and be detailed enough to spark discussion. The questions are to be uploaded to the Information system of MU (“Homework Vault / Odevzdávárna”). The arguments presented need to be theoretically anchored, correspond to the facts of the case at hand, and follow the guidelines of a reasonable argumentative exchange. Before the debate, one referee will be elected as the chair of the session. The chair decides on the order and duration of argumentative slots for each group, and generally steers the debate. The chair as well as other referees will prepare their own questions for the discussing parties. Again, their two questions for each group are to be uploaded to the Information system of MU one week before the debate (“Homework Vault / Odevzdávárna”). Other than steering, the main task of the referees is to evaluate the performance of the competing parties, based on both the reports and the debate. Questions from the referees should be posted by someone other than the chair, and each member of the referee group should be prepared to take over the role in chair in the case of any technical complication or absence. The debate starts with a ten-minute exposition by each group (in an order selected by the chair), based on the submitted reports. Each group will select one person who will present the exposition, and a different person to answer each question posed by the opposing group. Each person in the group should be prepared to answer all of the questions as they may be asked to do so in case of absence. After the introductory presentations, critical exchange ensues, steered by the referees. The questions prepared by both parties and by the referees will be posed and answered in turn. This will continue until the referees declare an end, based on timing. At the end of the debate (fifteen minutes before the end of the lesson), each of the opposing parties should have elected one member who will have two minutes to summarize their main points in a final speech, taking into consideration the contents of the debate. The referees then leave the class and take a vote (after deliberation if necessary), determining the winner. If there is a parity of votes, the chair’s vote is final. The verdict is then announced publicly, immediate justification is NOT required since it will come in their report after the debate. Within one week of the debate, the referees prepare a seven-page long justification and explanation of their decision. Possible dissenting referees can prepare their separate reports, including those who concur with the decision yet are unsatisfied with the reasoning in the official justification. It is important that the report should not simply be a summary of the arguments presented, but rather a critical discussion of why one substantive POSITION is better than the other. Of course, you can, and should, reference literature surrounding the topic during this discussion, citing sources. Final paper (maximum 16 points) which should be written to the course relevant topic (length approximately 10 pages). The topic should be consulted with one of the lecturers during their office hours. Components of evaluation: original authors approach, relevant goals and methods, theoretical background, conceptualizing of the topic, structure, sources and literature. Deadline for submission: May 18, 2021; paper should be uploaded in the Information system MU, section “Odevzdávárna”. (3) Final written exam (max. 24 points): There will be a final in-class written exam, consisting of two questions based on required readings and discussions in classes. Grading: A 40 - 37 B 36-33 C 32 – 30 D 29 - 26 E 25 - 23 F 22 – 0, i. e. 24 points for final exam, 16 points for paper, special bonus: maximum 4 points for discussions.
Language of instruction
English
Further Comments
Study Materials
The course is taught annually.
The course is also listed under the following terms Spring 2020.
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