Comparative Constitutional Law
Gábor HALMAI & Martin SCHEININ
Thursday, 17.00-19.00, Sala degli Anelli
Registration code: LAW-DS-COMCON-16
Administrative Assistant: Agnieszka Lempart
6 credits
Comparative constitutional law compares the constitutional law of more than one country/nation/state. In many countries in the world, constitutional law has become a booming, ambitious, politically alive field, through which courts with constitutional jurisdiction have become aggressive players in new forms of politics. We are witnessing (as various authors call it) the “the rise of world constitutionalism,” “the inevitable globalization of constitutional law,” “migration of constitutional ideas,” “constitutional engagement in a transnational era,” “governing with judges.” Comparative constitutional law is where much of the political and legal action is these days.
Apart from its inherent interest, comparative constitutional law is important to study for another reason. It is hard to understand many important political transformations in the world without understanding the role of new constitutions and newly aggressive judicial review as critical elements of the changes. The development of new forms of constitutional law has been critical in the “transitions” of post-communist states to democratic and economically liberal regimes (e.g. Hungary, Poland, Slovenia, Bulgaria), in the integration of Europe (in both the European Union and in the Council of Europe), in the secularization of politics in potentially religious states (e.g. Israel, Turkey, India), in the maintenance of rights-respecting federal democracies in the face of regime-challenging pluralism (e.g. Spain, Russia, Canada), in the peaceful transformation of minority governments into more broadly based democracies (e.g. South Africa) and in the stunning transformation in the range of legally enforceable rights around the world (almost everywhere that functioning constitutions exist).
The course readings will focus on three core areas: 1) the allocation of constitutional powers; 2) the rights provisions in national constitutions; and 3) contemporary themes concerning the intersection of international law, transitional justice and comparative constitutionalism.
Allocation of constitutional powers.
Much of what a constitution does is to both create and constrain political power. A constitution creates political power by constituting offices with capacities to act within the constitutional framework. A constitution constrains political power by setting limits to the capacities of each office. Generally, constitutions achieve both the creation and constraint of power by setting up a competition for it among different parts of a government. As we go through the course, we will look at the construction of and interplay between a country’s executive, legislative and judicial power, as well as between the national government and regional governments and between the national government and the transnational legal context. A constitution tells us a plan for how power can be brought under constraint of law.
Rights.
Apart from their inherent importance, there are other reasons to pay special attention to human rights questions in a course on comparative constitutional law. First, it is in the area of rights jurisprudence that constitutional courts have come into their own. If we are going to be focusing on courts in the post-war period, then rights constitute the main area in which courts have been especially active. By focusing on rights, we see courts at their most self-confident and popular moments. Second, the jurisprudence of rights is an area where courts in different countries are most likely to look to each other for support. While the political structures of a country are likely to be unique both in their composition and in their relationship to particular national histories, rights have a claim to universality. It is the rare court that thinks of rights as being something that belong only in one country and in no other, or that have a special pedigree in one place while lacking a basis for it elsewhere. Because rights have nearly universal ambition, at least in the views of their leading advocates, rights cases are most likely to reach outside the jurisdiction of the particular country in which the court sits to make use of similar cases resolved elsewhere. The South African Constitutional Court, for example, cited the Hungarian Constitutional Court’s decision on the death penalty, and the Hungarian Court cited the German Constitutional Court’s decisions on hate speech. When one looks at the rights decisions of high courts, one is most likely to see the emergence of a common constitutional culture that is bridging liberal constitutional democracies that have otherwise very different histories. And this term, we will be focusing on the development of that common constitutional law especially.
Contemporary themes.
(1) The rise of extremism threatening liberal democratic values and the very existence of democracy, similarly to the situation in the 1930s, again raises the question, what tools constitutional democracies can and should use to protect themselves from these threats. How far can means of militant democracy curtail basic fundamental rights, such as freedom of expression, assembly and association of the enemies of democracy? (2) Legal regulations of transitional justice in the domestic legal systems of formerly authoritarian regimes attempt to reconcile past abuses of constitutionalism. The new discipline of ‘transitional justice’ deals also with international bodies prosecuting and punishing the most serious cases of war crimes, crimes against humanity and genocide.