Contested Ideas in Constitutional Law and Theory - HSSO16
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This course is structured around “contested ideas” — foundational concepts that are critical to the development of constitutional law and theory as distinct fields of knowledge and to their practical application in various jurisdictions (the course focuses on those of the EU). The link between the theoretical (conceptual analysis) and practical (constitutional practice) dimensions is achieved by focusing on contemporary social and political issues framed as constitutional controversies. This methodology is designed to provide students with:
a deeper theoretical knowledge of selected foundational concepts; and an understanding of their significance in constitutional practice, related to current affairs. One example of a contested idea is the judicial review of legislation — the power of courts to scrutinise legislative acts. This concept has been debated continuously across many constitutional democracies and throughout a long history. Contestation surrounding judicial review focuses on critical issues such as democratic legitimation (justifying the right of non-elected courts to overturn legislation passed by democratic bodies), substantive competence (whether it is appropriate for the judiciary to make decisions on complex socio-economic issues) and institutional design (the differences between systems of review, e.g. concentrated vs. diffuse models). In this course, we will explore these debates by examining judicial review in relation to climate litigation. This contemporary framework enables us to study a wide range of materials, including decisions from national supreme/constitutional courts and supranational judicial institutions (e.g. the ECtHR). By engaging with these controversies, students will learn to connect abstract yet relevant academic debates to a highly relevant societal issue. The aim is to make students knowledgeable about various theoretical discussions and competent in drawing upon them in a practical and contemporary context. Each seminar is divided into two 45-minute sessions. The first part is dedicated to an introductory discussion on the given topic, led by the tandem of teachers (see below). The second part consists of a group discussion centred on pre-assigned academic texts and other materials. For this second part, one student is always designated as the lead presenter (tasked with explaining the essence of the materials, their significance in a given controversy and critiques made to them). They will prepare a summary document (with the assistance of AI). Another student acts as the lead discussant (tasked with providing a critical response to the theses presented by the first student and their arguments). The course will use AI tools extensively to enable students processing the wide range of material in a reasonable time and with effort that can be expected from a 4 ECTS course. AI will be used reflectively throughout the course, i.e. the appropriateness of particular tools and their limitations will be discussed with students as part of their learning outcome. Syllabus Seminars will be taught in a tandem: the guarantor together with another colleague from the Department of Constitutional Law who specializes in a given topic. One seminar will be devoted to a guest, whose work will be discussed, either in person or with them present online (hybrid format). 1. Introduction to the course: Why “contested ideas”? (Jan Komárek & Filip Jelínek) This introductory session presents the course’s theoretical and conceptual foundations by exploring “essentially contested concepts” in constitutional law and theory. Students will examine how constitutional law is not a static set of rules but a battlefield of competing ideologies and imaginaries. By contrasting liberal constitutionalism with emerging alternatives like “common good” or populist constitutionalism, we will discuss whether certain foundational ideas are inherently open to endless dispute or if a stable consensus is possible in a pluralistic society – or even necessary for constitutionalism to work. 2. What is “the constitution” and what belongs to it? (Jan Komárek & Filip Jelínek) Moving beyond the text, this seminar investigates the ontological nature of a constitution. It tackles the paradox of “unconstitutional constitutional amendments”, where the core identity of a constitution is defended against formal legal changes. In an era of populist and authoritarian constitutionalism, students will debate what truly “belongs” to a constitution—is it merely a legal document, or an enduring political commitment that restricts even the sovereign people from certain paths of self-destruction? 3. From nation-states to member states – and back? (Jan Komárek & Jan Grinc) This session takes a closer look at what actually happens when a “nation-state” transforms into a “member state” of the EU. Instead of the state being a source of power that represents its own people, it begins to function as a part of a larger European machinery. We will explore how this shift changes the way governments act—often looking toward European neighbours and institutions for rules and validation rather than toward their own citizens.We will discuss whether the “democratic deficit” is not just as a small mistake in the system, but represents a deep change in how we think about the law’s relationship to the people it governs. Students will explore whether being part of the EU is a way to protect our freedom or if it makes it harder for people to feel they are truly in control of their own laws. What does it really mean to “take back control” or to make your country “great again”? 4. Ruling the “void”? (Jan Komárek & Jan Grinc) This session explores what happens to democracy when traditional political parties lose their connection to the people they represent. We will use the idea of the “void” to describe the empty space left behind when parties stop being the main link between citizens and the state. We will then ask if partisanship—the act of citizens organizing around shared political beliefs—is a necessary part of a healthy constitution. If parties are “hollowed out”, is it a problem that NGOs and lobby groups are the ones now influencing the law? Students will debate whether the law should do more to protect the role of political parties as the primary voice of the people, or if we are moving toward a new kind of “expert-led” or “social-activist-led” constitutionalism that risks leaving most citizens behind. 5. The limits of constitutional leadership and the fear of “Der Führerstaat” (Jan Komárek & Jakub Dienstbier) This session follows our investigation into the “void” left by the decline of traditional political parties. We will explore whether the move toward the concentration of power in a single, and sometimes directly elected, leader - is a response to the perceived “inefficiency” or “emptiness” of parliamentary democracy. We will investigate how the ghost of the “Weimar collapse” continues to haunt European constitutional thought, leading to a certain suspicion of strong, personalized leadership. By looking at the contemporary rise of authoritarianism in Europe, we will debate whether a strong (albeit democratically elected) leader can use their power to bypass the “void” and hollow out the deliberative role of parliament and other constitutional institutions. 6. Judicial review and climate justice (Jan Komárek & Andrea Procházková) This seminar moves beyond the technicalities of environmental law to ask a more fundamental question: why should judges have the final word on the future of our planet? We will examine landmark cases, such as the German Federal Constitutional Court’s Neubauer decision or the ECtHR’s ruling in Verein KlimaSeniorinnen, to see how courts are being asked to protect the rights of future generations. This means investigating whether “strategic litigation” is a healthy way to force political change or if it risks turning judges into “super-legislators”. We will debate whether the courtroom is a site of principled legal reasoning or merely a shortcut for political movements that cannot win a majority in parliament. Ultimately, we ask if the “faith in the rule of law” is strengthened or weakened when courts take the lead on the most contested societal issues of our time. 7. Human rights as the last utopia? (Jan Komárek & Andrea Procházková) Drawing on the idea of human rights as the “last utopia”, this seminar explores how fundamental rights transformed from a marginal legal category into the primary language of global justice. We begin with the unique “legalism” of the dissident movement in the former Czechoslovakia, where Charta 77 strategically used the state’s own commitment to international treaties as a tool of resistance. By demanding that the regime follow its own written laws, they turned human rights into a powerful moral and political imaginary that eventually helped dismantle the Iron Curtain. Our focus will be, however, on the period of “liberal triumphalism” that followed 1989, when rights were promoted as the definitive solution to all societal conflicts. However, the contemporary context poses a sharp challenge to this utopia. In an era of “Emergency Europe” and rising populism, we will ask if the heavy reliance on courts and technical legal claims has alienated ordinary citizens. We will debate whether human rights can still serve as a site of hope or if they have become an “oppressive ideology” that fails to address the deep-seated economic and social anxieties of today’s world. 8. The political economy of constitutionalism (Jan Komárek & Filip Jelínek) This session explores the hidden relationship between constitutional law and the distribution of wealth and power in society. We move beyond the technical rules of the “fiscal constitution” - such as debt limits and budgetary rules—to ask how the entire legal system functions as a “political economy”. Students will investigate the idea that no legal norm is truly neutral; even rules that seem to have nothing to do with money, such as those governing free speech or administrative procedures, help determine who wins and who loses in our economy. This means looking at the "material" side of the constitution. We will debate whether the law simply protects a “neutral” market or if it actively “engineers” social inequality. The goal is to understand how constitutional interpretation can either entrench the status quo or open up new possibilities for social justice, moving the discussion from abstract rights to the concrete reality of how people actually live. 9. Citizenship for sale? (Jan Komárek & Miluše Kindlová) This session investigates the commodification of membership through “citizenship by investment” schemes, using them as a starting point to explore broader, competing theories of citizenship. We move beyond the technical requirements of naturalization to confront a profound conflict between two visions of the polity. On one hand, we examine the traditional view of citizenship as a “sacred” bond of constitutional self-government and shared autonomy—a status that defines the “we, the people” through a shared political life. On the other hand, we face a market-based approach that treats membership as a “transferable asset” in a globalized economy. This controversy forces a reconsideration of what it truly means to belong to a constitutional community. We will debate whether citizenship is an inherent political status that requires active participation, or if it has become a “transnational” legal tool that ignores the “Other” - those who lack the wealth or status to buy their way into the “West”. By looking at legal challenges to these schemes in Europe, we ask if the "faith in the constitution" can survive when the status of the citizen is reduced to a commodity, potentially hollowing out the very idea of a shared democratic project. 10. National security and the “reason of state” (Jan Komárek & Jakub Dienstbier) This session examines what happens when the state’s survival seems to clash with its own legal rules. We will explore the concept of the “security constitution”—the set of rules meant to manage emergencies and existential threats. We will ask: how much can a government keep secret in the name of “national security” before it undermines the rule of law? We will debate whether a liberal democracy can protect itself from foreign threats without destroying the foundational principles of transparency and accountability. For a law student, this means investigating whether the "reason of state" is a valid legal justification for exceptional power or if it is an "oppressive ideology" that hides the hollowing out of constitutional protections. 11. States and/vs. digital empires (Jan Komárek & Andrea Procházková) This session investigates how modern constitutionalism is tested by tech giants—such as Meta, Google, and Anthropic—that often act like sovereign states. We will explore the “vertical battle” for power between traditional governments and these borderless digital empires. This means asking a fundamental question: if a private company’s algorithm can decide what is “fair” or “honest” for millions of people, has the private sector taken over a role that used to belong to the constitution? We will debate the rise of “digital sovereignty” and whether we are moving toward a world where your fundamental rights depend more on a company’s terms of service than on the laws of the country where you live. 12. Constitutional scholars as a diffuse branch of government (Jan Komárek & Filip Jelínek) This final session turns the gaze inward, examining the role of constitutional scholars as a “diffuse branch of government”. Moving beyond various accounts of a “fourth branch” - which usually refer to formal institutions like administrative agencies or a central bank - we will explore the idea of scholarship as a decentralized network of influence that lacks a single centre of power. We will investigate how scholarly interpretations, categorizations, and conceptual maps provide the underlying architecture that judges and politicians use to navigate the exercise of power. This means reconsidering the authority and legitimacy of constitutional scholars. We will debate the responsibility of this “diffuse branch”, asking whether scholars should remain distant from the political fray or if they are, by the very nature of their work, active participants in the life of the constitution. By reflecting on how scholarship shapes the shared beliefs that sustain the state, we ask whether a modern democracy can survive without this diffuse network of knowledge and whether its decentralized influence is a necessary check or a problematic distortion of democratic will. Learning outcomes Upon successful completion of this course, the student: (1) Defines and distinguishes between foundational concepts of constitutional law as "essentially contested concepts," explaining why consensus is often elusive in a pluralistic society. (2) Critically assesses the ontological nature of a constitution, distinguishing between its formal legal text and its material identity. (3) Analyzes and applies the doctrine of "unconstitutional constitutional amendments" to contemporary cases of constitutional backsliding. (4) Explains the transformation of a "nation-state" into a "member state" and evaluates the resulting impact on democratic accountability and the "democratic deficit". (5) Evaluates the sociological concept of the "void" and its impact on the link between citizens and the state in modern democracies. (6) Contrasts the roles of political parties with those of NGOs and lobby groups in shaping contemporary constitutional imaginaries. (7) Critically reflects on the "ghost of Weimar" and how the fear of a "Führerstaat" shapes European suspicions of strong executive power. (8) Analyzes the constitutional consequences of direct presidential elections in parliamentary regimes, using the Czech Republic as a primary case study. (9) Formulates arguments regarding the "counter-majoritarian difficulty" and the legitimacy of judicial review in resolving complex socio-economic issues like climate change. (10) Assesses the "substantive competence" of courts in strategic litigation and evaluates their role as "super-legislators". (11) Traces the historical evolution of human rights from a marginal legal category to the "last utopia" of global justice. (12) Explains the unique "human rights legalism" of the Czechoslovak dissident movement and its role in dismantling totalitarian power. (13) Critiques the "liberal triumphalism" of the post-1989 era and its failure to address current populist challenges. (14) Applies a "Law and Political Economy" (LPE) framework to show how ostensibly neutral legal norms influence redistribution and social inequality. (15) Distinguishes between citizenship as a sacred bond of self-government and citizenship as a transferable commodity in a globalized economy. (16) Analyzes the concept of the "Other" in constitutional law and how citizenship schemes reinforce global inequalities. (17) Evaluates the tension between state sovereignty and the rise of "digital empires," asking whether private algorithms have taken over constitutional roles. (18) Defines and defends the concept of constitutional scholars as a "diffuse branch of government" that shapes the underlying architecture of power. (19) Demonstrates reflexivity in the use of AI tools for processing and summarizing complex legal materials. (20) Exhibits advanced academic skills through the roles of lead presenter and lead discussant, including the capacity to synthesize critiques of academic texts. Literature (study references) Foundational texts – these will be complemented by other materials: book, articles and chapters, together with relevant constitutional provisions, other legislation and case law of national constitutional courts, the European Court of Human Rights and the Court of Justice of the EU: Terence Ball, James Farr and Russel L. Hanson (eds), Political Innovation and Conceptual Change (CUP 1989) Christopher J. Bickerton, European Integration: From Nation-States to Member States (OUP 2012) Anu Bradford, Digital Empires: The Global Battle to Regulate Technology (OUP 2023) Evan J. Criddle (ed), Human Rights in Emergencies (CUP 2016) Conrado Hübner Mendes, Constitutional Courts and Deliberative Democracy (OUP 2013) Samuel Moyn, The Last Utopia: Human Rights in History (HUP 2010) Peter Mair, Ruling the Void: The Hollowing of Western Democracy (Verso 2013) Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (OUP 2017) Ayelet Shachar, The Birthright Lottery: Citizenship and Global Inequality (HUP 2009) Lars Vinx, The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law (CUP 2015) Michael A. Wilkinson, Authoritarian Liberalism and the Transformation of Modern Europe (OUP 2021) Requirements for the assessment of subject (rules of the subject) The colloquium (credit) is awarded for active participation in at least 8 seminars (this will be evaluated at the end of each seminar). Additionally, each student must serve exactly once in the role of either the lead presenter or the lead discussant (as described above in the Annotation). Last update: Marešová Svatava, Ing. (27.05.2026)
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