CONSTITUTIONALISM: THEORY AND LAW
Andras Bragyova
Fall, 1995
Department of Political Science
CENTRAL EUROPEAN UNIVERSITY



Course Description.

The aim of the course is to introduce students to fundamental concepts of constitutionalism as an idea (normative political theory) and constitutional law as the implementation of the ideas of constitutionalism. Moreover, the course is intended to familiarize students with legal institutions and rules of constitutional state and government as the basic paradigm of political science.

Since constitutionalism is an essential part of European (and generally Western) political tradition, adoption of its values and norms has been regarded in Central and Eastern Europe as an inseparable part of the political transformation beginning in 1989. Most states of Central Europe now regard themselves as constitutional democracies and/or declare constitutional democracy as an aim to be achieved. Thus constitutionalism has become a key concept also Central and Eastern European politics; therefore, the knowledge of its traditions is ineluctable in the study not only of Western but also of Eastern and Central European politics.

The course focuses on two key components of constitutional state, viz. limited government (rule of law, Rechtstaat, separation of powers) and constitutional guarantees of fundamental rights of citizens. In other words, it intends to give to students a comparative view of institutional structures of modern constitutional state in its diverse forms in the Anglo-American and continental European states. Special attention is devoted throughout to the continental European tradition of constitutionalism and to the constitutional traditions of Central and Eastern Europe.

The method of teaching includes lectures elaborating the topics and discussions on the basis of the readings.

TOPICS:

The concept of the constitution: constitution and constitutionalism.
Reading:
G. Sartori, 'Constitutionalism: a preliminary discussions' American Political Science Review, 56 (1962) 853;
C. Grey 'Constitutionalism: an analytic framework', J.R. Pennock & 1. Chapman, eds., Constitutionalism, 1979, (Nomos XX) 189

Constitution as a fundamental law: its function in the legal order; the juristic concept of the constitution.
Reading:
E.McWhinney, Constitution making: principles, process, practice, 1981, Chapter 1.
H. Kelsen, 'The function of the constitution' R. Tur & W. Twining eds., Essays on Kelsen, 1986, 109

Sovereignty and the constitution: authority and justification of the constitution; democracy and constitutionalism; the concept of 'pouvoir constituant'; nation and constitution.
Reading:
C.J. Friedrich: Constitutional government and democracy, 1968, Chapter VIII
Benn-Peters, Social foundations of democratic state, 1958, Chapter 15 McWhinney, Chapters 2-3

Constitution making and constitutional change: forms and limits; Constitutions and political systems.
Reading:
C.J. Friedrich, Chapters VII-IX
McWhinney, Chapter I

Constitutionalism and the idea of 'rule of law'.
Reading:
A.V. Dicey, Introduction to the study of the law of the constitution [first published 1898] Chapters 3-4
Dietz, Two concepts of rule of law, 1973

Separation of powers and constitutionalism.
Reading:
Friedrich, Chapter X
McWhinney, Chapter 5

Forms of government.
Reading:
Friedrich, Chapter X and XVIII

Constitutional rights I: their concept and function.
Reading:
R. Dworkin, 'Taking rights seriously' Dworkin, Taking rights seriously, 1978, 184
Benn-Peters, Chapter 4

Constitutional rights II: equality, minority rights collective rights, political rights, social rights.
Reading:
Benn-Peters, Chapter 5
Bragyova, 'Are there any minority rights? Equality and Minority' Archiv fur Rechts- und
Sozialphilosophie
80 (1994) 489

The vertical structure of the state: federalism, regionalism, local power.
Reading:
Friedrich, Chapter XI
McWhinney, Chapter 6

Representation in the constitutional state: the concept of representation.
Reading:
Friedrich, Chapter XIV

Representation in practice: electoral systems.
Reading:
Friedrich, Chapter XV

Representative institutions: parliaments and their structure; elements of parliamentary law and procedure.
Reading:
Friedrich, Chapter XVI-XVII

Executive power in the constitutional state: head of state, government; parliamentary and other; ministerial responsibility; relationship between parliament and government.
Reading:
Friedrich, Chapter XVIII
McWhinney, Chapter 5

Judicial power: judicial control in constitutionalism; Constitutional courts in Europe: constitutional review European style.
Reading:
Federalist Papers No. 78
Marbury v Madison (1803)
Friedrich, Chapter XII
McWhinney, Chapter 10

Constitutional problems of transition to constitutionalism.
Reading:
Bragyova, 'Ex post facto political justice and legality', Acta juridica Hungarica 33 (1993) 179

GRADING:
Activity during the seminars: 20%
Mid term exam: 25 %
Final exam: 55%


CRC-Curriculum Resource Center
CEU Budapest, Hungary
Modified: July, 1996

Bra_ConstThL.F95PS.v3

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