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   Course Title    Comparative Constitutional Law
Lecturer    Valdis Bluzma
Institution    Latvian University
Country    Latvia


Comparative Constitutional Law

A Syllabus (44 hrs)

Course is planned for 44 academic hours including 30 lecture hours and 14 seminar hours.

I Introduction.

Comparative Constitutional Law is compulsory course of RIMPAK "Livonija" Business Institute program of legal studies for non -graduated students.

Course of Comparative Constitutional Law is lectured at the last third trimester of the first year of professional legal studies when students

had heard several theoretical subjects as Theory of State and Legal Theory, which provide the necessary base for successful learning of Constitutional Comparative Law. At the previous trimester students has studied course of Constitutional Law which had characterized constitutional system of Latvia and was an essential stipulation for successful comparison between systems of constitutional sources, institutions and norms of Latvia and foreign countries. The studies of Comparative Constitutional Law are advanced by simultaneous studies of Politics subject. It is necessary to add that at the first trimester of the second year students will hear course of Foreign Legal Systems and the successful studies of that subject would depend of knowledge which are gained studying Comparative Constitutional Law.

II Aim of the course

The main task of the course of Comparative Constitutional Law is imparting legal students of knowledge about common and different features of constitutional law systems of the world countries.

A great deal is set to comparative studies of constitutional law sources for understanding the principles of framework, the essential content and technique of codification of constitutional sources in common and of constitutions particularly.

In the frame of course there will be study out the criteria for classification of countries to different forms of rule, different models of territorial organization of power and different types of political regime.

The special attention in this course will be devoted to characterizing of the constitutional regulation in different countries.

The significant aim of the course of Comparative Constitutional Law is characterizing of advantages of principles of constitutional law in democratic states by the method of comparison constitutional systems of democratic states with non - democratic ones where constitutional law is usually of clearly declarative meaning.

The special role in this course is given to analysis of constitutional framework for human and civil rights. This is of special significance in process of forming the concepts of students about ruling of law.

III Objectives of the course

Studying substance of the course students will get clear image about the fundamental principles of constitutional law. They will acquire the comparing of its application in countries with different public order, ruling forms, territorial structures of power and political regime.

Students will know the difference between common regularities of constitutional law in democratic countries and the peculiarities of constitutional norms in single countries.

Students will master the skills of comparative analyzing of constitutional law systems, sources and norms on macro -, midi - and micro level devoting the special attention to comparative analyzing of Latvian constitutional law with constitutional law systems of other countries.

Students based themselves on analysis of constitutional law norms will qualify the belonging of state to one or another type of state system, will define its ruling form and territorial organization of power.

Students will obtain the clear concept about legal norms system, which regulates state relations with individuals and citizens of that country and understanding on difference between areas of human and civil rights and their peculiar content in countries with various political regimes.

The studies of comparative constitutional law will ensure students not only with common theoretical but also practical knowledge which will give them ability after studying of this course to perceive the tasks and opportunities of improvement of constitutional law rules and institutions, and political bodies of power in Latvia and other post - socialist countries.

IV Course Detail

  1. Lecture Synopsis.

    Lecture 1

    The subject and systems of comparative constitutional law

    (2 hrs).

    The definition of constitutional law. The subject of comparative constitutional law: content and significance.

    The place and role of constitutional law in legal systems. Historical trends of evolution of constitutional law.

    The system of constitutional law. The regulation subjects of constitutional law. The trends of development in the area of constitutional law.

    The sources of constitutional law: constitution, institutional laws, ordinary laws, other legislative and executive acts, international and internal treaties, judicial precedents, constitutional traditions and customs, doctrine, common principles of law.

    Lecture 2

    Historical development of comparative constitutional studies

    (2 hrs)

    The problem of the start point of studies in the field of comparative constitutional law. Ancient comparative studies (Plato, Aristotle). Comparative studies in medieval times. The formation of the idea of constitutionalism (Hobbes, Montesquieu, Locke, Rousseau,) in XVII and XVIII centuries. Constitutionalism in XIX century (Dicey, May, Mill, Esmain).

    The main directions in studies of constitutional law in XX century.

    The studies of constitutional law in the works of theorists of communism (K. Marx, V. Lenin, P. Stucka). The studies of constitutional law in prewar Republic of Latvia (K. Dislers, B. von Disterlo) and in Soviet Latvia period (V. Millers, A. Plotnieks).

    The processes of globalization and their impact on the development of comparative studies in the field of constitutional law. The role of the collapse of socialist states in Central and Eastern Europe in the stimulation of comparative constitutional studies in post - socialist countries.

    The role of European economic and political integration in development of comparative constitutional studies.

    Lecture 3

    Comparative analyzing of constitutional law

    (2 hrs)

    The aims of comparative analysis. Subjects and levels of comparison. The theoretical and practical aims of constitutional comparative study. Main stages of study. The theoretical and practical application of results.

    Lecture 4

    The constitutions of world countries: Comparative analyses

    (2 hrs)

    Definition of constitution. The supreme power of constitution in hierarchy of law. Direct power of the constitution. The political and social nature of constitutions.

    Classification of the constitutions. Forms and structure constitution. Functions of constitution.

    The first steps of constitutionalism in Western Europe and Northern America. The adopting of the first constitutions (XVII - XVIII centuries).

    The subjects of constitutional regulation and their historical development. The constitutions of post - socialist countries.

    Formulation of constitutional norms.

    The adopting of constitution (by referendum, by special constitutional assembly, by octroying charter, by parliament). The changing and elaboration of constitution. The annulment, suspension and restoring of constitution.

    The comparative analysis of constitution of Republic of Latvia.

    Lecture 5

    Human and civil rights in the world constitutions

    (2 hrs)

    Meaning of human rights. Structure of human rights. The place of human rights in constitutional law.

    Historical evolution of human rights in constitutional law of world countries. International standards and sources of human rights. Comparative analysis of content and formulation of human rights at constitutional law of Latvia and other countries.

    Principal difference between human and civil rights. Political liberties; their characterizing in constitutions of the world countries. Duties of citizens in constitutional law. Protection of human and civil rights.

    Status of citizenship, an order of its acquirement and deprivation. Apatrides and bipatrides. Aliens (former citizens of USSR) and the legal regulation of their status in Latvia. Citizenship of European Union.

    Lecture 6

    Constitutional order of state

    (2 hrs)

    Characterizing of base of constitutional order in world constitutions. The guarantees of constitutional order stability. Political, economic, social and spiritual foundations of state. A democratic state. The rule of laws. A secular state. The social market economy state. A totalitarian state. A socialist state. A post - socialist state. A theocratic state.

    Lecture 7

    The constitutional outline of national sovereignty principle

    (2 hrs)

    The concept of nation in constitutional law. The priority of the rule of the people. The constitutional principles of the expression of people's will. The preclusion of usurpation of power of nation in the democratic state. The interpretations of principle of sovereignty of nation in countries with non- democratic regimes.

    Constitutional principles of free self - organization of political, social, national and other type communities. The concept of civil society and its constitutional incorporation. Political parties and their constitutional status in society.

    The role of mass - media in ensuring of interaction among state and civil society in democratic countries.

    The concept and role of elections and suffrage in constitutional law. The historical evolution of suffrage. Franchise rights and rights to be elected. Ballot systems (majority, proportional, mixed and others) in the world countries. The conduct of elections. The prevention of illegal actions and abuses in the voting process.

    The direct democracy implementation forms. Referendums. The supreme power of referendum decisions.

    Lecture 8

    The reflection of ruling forms in constitutional laws

    (2 hrs)

    The ruling forms of state in general. Monarchy and republic. The types of monarchy (absolute, constitutional, parliamentary). The types of republic (parliamentary, presidential, mixed). The ruling forms corresponding to democratic legal state. The ruling forms in totalitarian states. The ruling forms in Republic of Latvia (historical evaluation).

    Lecture 9

    Territorial construction of public power

    (2 hrs)

    The general types of territorial structure of public power. Unitary and federative states.

    The organization of local power. A political autonomy. The centralized and decentralized states. Democratic local self - governments and guarantees of their inner autonomy.

    The territorial construction of public power in Republic of Latvia.

    Lecture 10

    The constitutional regulation of the separation of the branches of power

    (2 hrs)

    Theory of separation of power and its implementation in practice by states of different ruling forms and political regimes. Parliamentarism and constitutionalism.

    The branches of legislative, executive and judicial power. The principle of checks and balances and its realization.

    Lecture 11

    The place and role of parliament in constitutional systems of world countries

    (2 hrs)

    Parliament as representative body of nation. The historical origins and development of parliament. The place of parliament in states of different forms and types. Competence and functions of parliament.

    The structure of parliaments and the order of their forming. One -cameral and bicameral parliaments. Organs and officials of parliament. Regulation of the parliament work. Parliamentary control and its organization. The legal status of members of parliament. Immunity of members of parliament.

    Lecture 12

    The constitutional regulation of status of the head of state

    (2 hrs)

    Place and role of head of state in constitutional systems. Historical origins of monarch institution. The systems of succession to the throne. The role of monarch, his/her competence, authority and legal status in different state systems.

    President of republic. Legal status and size of competence and authority of president in different types of republic. The systems of presidential election. Liability of the head of state.

    Lecture 13

    Government in the world constitutions

    (2 hrs)

    Government as institution of executive and administrative power. The functions and competence of government. Composition and structure of government.

    The types of government. Relationship of the government forming order with the type of state. The heads of government, their authority volume in different states. The order of designation of the head of government.

    The order of government action and decision making. The kinds of governmental acts and their legal power.

    Lecture 14

    The structure of judiciary in constitutional systems of world countries

    (2 hrs)

     

    The role of judicial power, its competence and functions. The hierarchy of judiciary. The order of forming of courts. The independence of courts and its ensuring in constitutional law. The models of judiciary in world countries. The branches of judiciary.

    The principles of work of judiciary. The general principles of court proceedings. The status of judges and guarantees of their independence. The role of public prosecutor's office, advocacy and police in judicial system.

    Lecture 15

    The constitutional justice and control

    (2 hrs)

    The role of constitutional justice for ensuring of protection of constitutional law. The historical formation of the constitutional justice. The concept, status, order of forming and competence of constitutional court. The realization of constitutional justice by general jurisdiction court. Quasi - judicial constitution protection institutions.

    The experience of democratic states in the field of constitutional justice.

  2. Seminars.

Seminar 1.

The comparison of form and structure of the constitutions

(2 hrs)

Constitution of Republic of Latvia (1922). Constitution of the United States of America (1787). Constitution of Federal Republic of Germany (1949). Constitution and other constitutional acts of V Republic of France (1958). Constitution of Spain (1978). Constitutional acts of Sweden. Constitution of Republic of Finland (2000). The unwritten constitution of United Kingdom. Constitution of Switzerland (2000). Constitution of Russian Federation (1993). Constitution of the Republic of Estonia (1992). Constitution of the Republic of Lithuania (1992). Constitution of the Republic of India (1950). Constitution of the Peoples Republic of China (1982).

The objectives: By analyzing constitutions of different states students will get an image about big variety of democratic state constitutions in their form and structure and main differences between modern democratic and non - democratic constitutions.

By comparing older constitutions and the newest ones students will get an outlook about progress in the field of constitutional law, and will clarify historical and sociopolitical circumstances which promoted the inclusion of one or another constitutional norm in the text of constitution.

By comparing the texts of constitutions students will learn the formulation of general principles of constitutional law.

Seminar 2.

Human and civil rights: Analysis of constitutional regulation

(2 hrs)

Characterizing of fundamental rights in international documents (UN General Charter on Human Rights (1948); European Convention on Protection of Human Rights and Fundamental Freedoms (1950)). The treatment of human rights in constitutions of democratic states (USA, Germany, France, and Spain). Different approaches to the treatment of human rights. The problem of death penal and abortion.

Characterizing of human rights in constitution of Latvia and constitutions of other post - socialist states (Estonia, Lithuania, Russia, Poland). The situation with human rights in communist countries (USSR, China, Cuba). The reasons of violating of human rights in post - socialist countries.

Civil rights. The limits of political rights and freedoms. Economic rights. Intellectual rights. Social rights.

The objectives: Students will understand difference between human and civil rights and learn how to formulate them. Students will know the norms of human rights and their formulation in international legal sources and investigate how these norms have influenced national constitutional law. Students will compare the norms of human and civil rights in the given sources of constitutional law for getting picture about historical progress of this legal branch and for researching specific political circumstances which determined the content of human and civil rights.

Disputable is question about relationship among rights of individual on living and death penalty or mother rights to abortion. The other negotiated question is about the limits of personal freedom, for example, freedom of using drugs, euthanasia etc. Students must come to a conclusion that national and religious tradition, political and economic conditions are significant factors determining the interpretation of content and arrangement of human and civil rights.

Seminar 3

Constitutional design of democratic state system

(2 hrs)

The general principles of democratic state system and their reflection in constitutions of democratic countries (USA, Germany, France, Spain, United Kingdom, Sweden and others).

Sovereignty of nation. Ruling of the people. The separation of powers. General democratic elections. Rule of law. Adoption of the decisions by majority. Consideration of the minority rights. Keeping the legal procedure. Observing the general principles of law. The means for prevention of distortion of democracy.

Objectives: By analyzing constitutions and other constitutional sources of Western countries students will learn the fundamental principles of democratic system and separate them from norms which characterize ruling forms or territorial organization of power. Students will make the conclusions about quality of formulated constitutional norms in constitutions of different countries. For discussion there will be moot the question about relationship between constitutional formulating of democratic principles and praxis of their implementation.

Seminar 4.

Parliamentary and presidential republic: common and specific features

(2 hrs)

Constitutional regulation of parliamentary republic (Latvia, Estonia, Germany, Italy). Constitutional regulation of presidential republic (USA). Constitutional regulation of mixed (half - presidential) republic (France, Russia).

The separation, limitation and balancing of powers. The volume of authority of the head of state. The relations between legislature and executive.

Objectives: The task of seminar is comparing the relationship of power institutions in republics with different forms of ruling. Talking over these subjects students will need to take in account discussions in Latvia about direct elections of state president in Latvia and extending of his authority. Students will know the difference in separating of power in parliamentary, presidential and mixed republic. In discussion students will try to clear the question about optimal balance of powers in post -socialist state.

Seminar 5

The territorial organization of power in unitary and federative states

(2 hrs)

The constitutional design of unitary state (Latvia, Estonia, United Kingdom, France, Sweden, Spain). Autonomies in unitary states (Spain, United Kingdom, Italy).

Constitutional regulation of federal states (USA, Germany, Russia, Switzerland, India). The differences of federal subject status in various countries. The separation of federal power and federation subjects power authorities. The federal trends in European Union.

Objectives: Analyzing the constitutional sources of aforementioned countries students will know essential difference in territorial structure of public power in unitary states, on the one hand, and in federal states, on the other. They will learn to characterize the constitutional status of federation subjects in various federations. They will realize what factors are significant in forming the territorial structure of state. Students will know the essential difference between status of political autonomy and local self - government in unitary states. There is disputable question about federal trends of European Union evolution and their possible impact on constitutional law of Latvia after its alignment in EU.

Seminar 6.

Constitutional reforms of post - socialist countries

(2 hrs).

The variety of constitutional development in Central European countries. Constitutional reforms in Republic of Poland. The adopting of provisional constitution of 1992 in Poland. The adopting of 1997 constitution by referendum. The enactment order of constitution of Republic of Poland.

Revision of constitution of Hungary (1949) in 1990.

Proclamation of independence of Slovakia on 27th July 1992. Adopting of constitution of Slovakia of 3rd September 1992. Liquidation of Czechoslovak federation by act of 25th November 1992. Adopting constitution of Czech Republic on 16th December 1992.

Objectives: Students will get a concept about common features (rejection of socialist constitutional principles, recognition of principles of democracy) and differences (diverse procedures of constitutional reforms, variety in order of forming the constitutional power institutions and their relationship) of constitutional reforms in post - socialist countries.

Seminar 7.

Constitutional reforms in Baltic States and CIS

(2 hrs)

Constitutional evolution of Baltic states. Transition to confederate relations with USSR. Proclamation of independence of Estonia on 20th August 1991. Adopting of new constitution of Estonia by referendum of 28th June, 1992. Declaration of independence of Republic of Latvia of 4th May, 1990. Restoring of constitution of 1922 in 6th July, 1993. Proclamation of independence of Republic of Lithuania on 11th of March, 1990. Adopting of new constitution of Lithuania by referendum on 25th October, 1992.

Constitutional evolution of CIS. Liquidation of USSR and formation of CIS. Adopting of new constitution of Russian Federation on 12th December, 1993. Formation of union of Russia and Belorus in 1996. Adopting of the constitution of Republic of Belorus by referendum of 24th November, 1996.

Objectives: Students will get concept about common features of constitutional reforms in Baltic States and their differences. There will be discussed question about alternative for constitutional development of Latvia - retaining of the existing constitution of 1922 or working out and adopting of new constitution following pattern demonstrated by Estonia and Lithuania.

Analyzing constitutions of CIS countries students will pay attention to larger proportion of Soviet law relicts in constitutions of Russia and Belorus.

(One seminar may be replaced by conference of student papers on comparative constitutional law topics).

VI Calendar schedule of lectures and seminars.

Lesson

Theme

Week

Lecture 1

The subject and systems of comparative constitutional law

1st week

Lecture 2

Historical development of comparative constitutional studies

1st week

Lecture 3

Comparative analyzing of constitutional law

2nd week

Lecture 4

The constitutions of world countries: Comparative analyses

3rd week

Seminar 1

The comparison of form and structure of the constitutions

3rd week

Lecture 5

Human and civil rights in the world constitutions

4th week

Seminar 2

Human and civil rights: Analysis of constitutional regulation

5th week

Lecture 6

Constitutional order of state

5th week

Lecture 7

The constitutional outline of national sovereignty principle

6th week

Seminar 3

Constitutional design of democratic state system

7th week

Lecture 8

The reflection of ruling forms in constitutional laws

7th week

Seminar 4

Parliamentary and presidential republic: common and specific features

8th week

Lecture 9

Territorial construction of public power

9th week

Seminar 5

The territorial organization of power in unitary and federative states

9th week

Lecture 10

The constitutional regulation of the separation of the branches of power

10th week

Lecture 11

The place and role of parliament in constitutional systems of world countries

11th week

Lecture 12

The constitutional regulation of status of the head of state

11th week

Lecture 13

Government in the world constitutions

12th week

Lecture 14

The structure of judiciary in constitutional systems of world countries

13th week

Seminar 6

Constitutional reforms of post - socialist countries

13th week

Lecture 15

The constitutional justice and control

14th week

Seminar 7

Constitutional reforms in Baltic States and CIS

15th week

 

V Assessment

In the progress of course students will prepare for seminars using the correspondent plan of seminar and list of literature and get their marks accordingly to their knowledge. Students will write one unaffiliated work - papers on comparative constitutional law (approx. 10 till 20 pages) either by choosing a topic from list of topics or by tender an original topic for prerequisite approving by lecturer. Papers will be presented to lecturer and assessed before the last assessment of student's knowledge - examination on comparative constitutional law. If the papers would not be presented in time the student will be kept out of examination. Authors of the best papers will read their theses on special seminar devoted to student readings.

There are two ways of taking an examination either by choosing the oral form of examination and answering three questions included in examination paper from the list of examination questions or by fulfilling the written test. In the last case the mark will be based on the number of the collected points.

VI Readings

    1. Mandatory
    2. a.a. Text - Books

      Barendt Eric. An Introduction to Constitutional Law. - Oxford: University Press, 1998. 189 p.

      Indrikovs Z. Arvalstu konstitucionalas tiesibas. - R., 1999. 249 lpp.

      Loveland Ian. Constitutional Law: A Critical Introduction. - L., Butterworths, 1996.

      a.b. Legal Sources

      Amerikas Savienoto Valstu konstitucija. - Latvijas Vestnesis, 1997. gada 4. julijs.

      Cilveka tiesibas. Starptautisko ligumu krajums. I sejums (Pirma un otra dala). Universalie ligumi. Apvienotas Nacijas. - Nujorka un Ženeva, 1994. 683 lpp.

      Cilvektiesibu un pamatbrivibu aizsardzibas konvencija. -

      Cilvektiesibu Žurnals, 1999, Nr. 9 - 12, 148. - 183. lpp.

      Konsolidets Eiropas Kopienas dibinašanas ligums.-R.,1999.

      384 lpp.

      The Rebirth of Democracy. 12 constitutions of central and eastern Europe. 2nd edition. - Strasbourg: Council of Europe, 1996. 445 p.

      Resources of Internet:

      Constitutional texts of world states:

      http://www.charter88.org.uk/

      http://www.uni-wuerzburg.de/law/

      http://www.urich.edu/~jpjones/confinder

    3. Recommended

An Outline of American Government. - S.l.,USIA, 1989.

ASV politiska iekarta. - B.v., USIA, 1989.

Bell John. French Constitutional Law. 1992.

Blondel Jean. Comparative Government. An Introduction. - N.Y., L. etc.: Philip Allan, 1990. xvi, 389 p.

Caenegem R.C. van. A Historical Introduction to Western Constitutional Law. - Cambridge: University Press, 1996. 338 p.

Constitution as a legal base for a system and functions of organs of the state. The 4th Baltic - Norvegian Conference on Constitutional Issues. Tallinn, 1996. 152 p.

Constitutional Dialogues in Comparative Perspective. Edited by S.J. Kenney, W.M. Reisinger, J.C. Reits. St. Martin`s Press, 1999.

Dadomo Ch., Farren S. The French Legal Systems. 2nd Edition.- London: Sweet & Maxwell, 1996.

1 – 2. - ?., 1994. 311; 311 c.

Latvijas Republikas Satversme. Dišlers K. Raksti par Latvijas Republikas Satversmi. - R., 1998.

Lebers D.A. sadarbiba ar Bišeru I. Ministru kabinets. - R.,1998. 253 lpp.

Levits E. Piezimes par Satversmes 8. nodalu - Cilveka pamattiesibas. - Cilvektiesibu Žurnals, 1999, nr. 9 - 12, 11. - 40. lpp.

Mits M. Satversme Eiropas cilvektiesibu standartu konteksta. - Cilvektiesibu Žurnals, 1999, nr. 9 - 12, 41. - 82. lpp.

Satversmes reforma Latvija: par un pret. R., 1995.

Studies in German Constitutionalism. Edited by C. Starck. 1995.

Šajo A. Tiesibas postkomunisma perioda. - Likums un Tiesibas, 1999, 1. sej., nr. 2, 37. - 44. lpp.

Western Rights? Post - Communist Application. A. Sajo ed. - The Hague, 1996.

VII Methods Used

For successful teaching of course of comparative constitutional law there are chosen methods which are more effective for reaching the aims of the course. Firstly, there is used the comparative method for evaluation of constitutional sources. Synchronous comparative method is used mainly but sometimes diachronous method also is used comparing, for example, constitutional sources of communist regime period with contemporary constitutional sources acting nowadays in post - socialist states. Constitutions of foreign countries and international constitutional documents often are compared with constitutional sources of Republic of Latvia. Comparative method is used both on macro level (in case when whole constitutional systems of several states are compared) and on medium level (for comparing some subdivision of constitutional law), and on micro level (if the isolated constitutional institutions and norms are compared).

Alongside with comparative method there are used also concrete historical, logical, teleological, inductive, deductive, sociological and other methods useful for analyzing the discussing legal material.

For every lecture students will get the deck of materials in which plan of lecture, definitions of significant categories considering at lecture,

visual graphics, extracts from constitutional sources analyzed at lecture and list of literature accordingly to subjects of lecture are included.

There is wide using of visuals at lectures demonstrating on screen graphics, quotations and definitions.

For seminar lesson students will get a plan in which seminar questions, list of significant categories, discussion questions, cases of constitutional law analyzed at seminar and list of mandatory and recommended readings are included.

Questions considered at lecture commonly will be discussed at seminar more widely. Sometimes the conducting of seminar may be assigned to student who showed deeper interest for subject. In this case lecturer acts as consultant and arbiter concluding the seminar.

At the one of the last seminars the conference of student papers is planned where students would master skills to report results of study, answering the questions and objections.

At consultations students will get recommendations for writing the papers, about useful sources and literature, appropriate variants of papers plan taking in account essence of analyzed subjects.

 



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