SOC042 Constitutional Adjudication – Morphology, Genealogy and Legitimacy

Faculty of Law
Spring 2018
Extent and Intensity
2/0. 6 credit(s). Type of Completion: zk (examination).
Teacher(s)
doc. JUDr. David Kosař, Ph.D., LL.M., J. S. D. (lecturer)
Mgr. Bc. Jan Petrov (assistant)
Supervisor
doc. JUDr. David Kosař, Ph.D., LL.M., J. S. D.
Faculty of Law
Contact Person: doc. JUDr. Ing. Michal Radvan, Ph.D.
Supplier department: Faculty of Law
Prerequisites
Prerequisite: An introductory course in constitutional law in student’s home country (can be waived under exceptional circumstances). Recommended: Acquaintance with the basic constitutional history and architecture of one or more countries other than the student's home country is recommended, as are keen interest in comparative constitutionalism. Throughout the course, we will occasionally touch upon essentials of constitutional theory. No prior background in this area is required.
Course Enrolment Limitations
The course is only offered to the students of the study fields the course is directly associated with.
Fields of study the course is directly associated with
Course objectives
Constitutional democracy is nowadays the dominant form of representative government in the world. Of this regime there is no comprehensive political theory. Next to political branches, elected and accountable to the voters through competitive elections, this form of government encompasses judicial organs exercising normative power through constitutional adjudication. This aspect of the judicial review will be analyzed considering the functions of Constitutional/Supreme courts in the world (focusing mainly on the countries that have, outside the US, the longest experience). Using an ideal typical taxonomy based on mechanisms of referral we will distinguish different effects of Courts’ decisions on the working of the political and constitutional system. Some attention will be devoted at the historical origin of constitutional adjudication. Next to the main descriptive dimension of the seminar we will discuss the old question of the legitimacy of non-elected and non-accountable (to the voters) organs in democratic societies. The institution that we will spend the most time studying is the Constitutional Court, which was invented in Austria following World War I, as a part of the new Austrian constitutional government. It was then “reinvented” following the Second World War in Germany and Italy and has been copied widely. But there are also other traditions of constitutional adjudication which locate the power to conduct constitutional review in a Supreme Court (which has also other judicial functions) as is done in the United States and Canada. Indeed there are much older traditions of constitutional adjudication that can be traced far back in history.
Syllabus
  • Class 1: Introduction – typology of constitutional adjudication Class 2: Italy – the Constitutional Court as judge of applied law Class 3: Germany – constitutional complaints Class 4: France – from saisine parlementaire to QPC Class 5: United States – judicial review Class 6: Commonwealth model I. – Canada (“moderate judicial review”) Class 7: Commonwealth model II. – New Zealand, UK, Australia (“weak judicial review”) Class 8: South Africa – constitutional court in the one-party State Class 9: Israel – strong judicial review without a written constitution Classes 10-11: student presentations of outlines Class 12: Legitimacy of constitutional adjudication – summation and reflections
Literature
  • Reading materials are available via the course IS.MUNI website. Depending on student interest, a few additional materials, handouts, and court rulings may be distributed in class.
Teaching methods
lectures, reaction paper, final essay
Assessment methods
65% final essay; 10% reaction papers; 10% final paper outline & presentation; 15% class participation
Language of instruction
English
Further comments (probably available only v češtině)
The course is taught annually.
The course is taught: every week.
Teacher's information
Reading materials are available via the course IS.MUNI website. Depending on student interest, a few additional materials, handouts, and court rulings may be distributed in class.
The course is also listed under the following terms Spring 2014.
  • Enrolment Statistics (Spring 2018, recent)
  • Permalink: https://is.muni.cz/course/law/spring2018/SOC042

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