Bachelor 2020/2021

Constitutionalism and Democracy

Category 'Best Course for Broadening Horizons and Diversity of Knowledge and Skills'

Type: Elective course (Political Science and World Politics)

Area of studies: Political Science

Delivered by: Department of Political Science and International Affairs

Where: Saint-Petersburg School of Social Sciences

When: 3 year, 3 module

Mode of studies: offline

Instructors: András Gál

Language: English

ECTS credits: 4

Contact hours: 40

Course Syllabus

Abstract

This course focuses on the concept of constitutionalism, the most important notions associated with it (like the limitation of government, separation of powers, rule of law, fundamental rights, constitutional adjudication, etc.) and their relationship with various normative conceptions of democracy. On the one hand, the course aims to provide an introduction to the most important concepts related to constitutionalism, and to analyze them from normative and empirical perspectives. On the other hand, the aim is also to engage in a critical dialogue with the meaning and assessment of the introduced concepts. Every topic will be discussed through normative analysis, examples from comparative law and by scrutinising the relevance of each topic from the perspective of comparative politics. The ten topics can be clustered in four groups. The first two sessions are dealing with the notion of constitutionalism, its legal and political aspects as well as the possible sources of constitutional legitimacy. The following two sessions focus on the definition and various forms of rights, together with the controversies surrounding them, presenting the individualistic perspective of constitutionalism. The third block, also consisting of two topics deals with the various institutional practices supporting constitutionalism, namely the rule of law and constitutional adjudication. Finally, the last four topics all stress the limits of constitutionalism through the questions of emergency regulations; constitutional erosion; militant democracy; and global constitutionalism.

Learning Objectives

• 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.

Expected Learning Outcomes

• 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

Course Contents

• Basic concepts: constitution, constitutionalism and democracy
  The 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-making
  The 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 rights
  These 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 rights
  Following 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 law
  Following 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 adjudication
  This 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 emergency
  In 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 constitutionalism
  The 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

Assessment Elements

• In-class Participation
  In 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.
• Presentation
  One 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 paper
  In 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 2
  In 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 exam
  The 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

• 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

Bibliography

Recommended Core Bibliography

• 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

Recommended Additional Bibliography

• 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