The course provides knowledge and understanding of the theoretical and practical aspects of the functioning of constitutional adjudication in the Central European region. The starting point of the course is to provide detailedknowledge of the status and functioning of the Constitutional Court of the Czech Republic. Simultaneously, the course places the constitutional adjudication of Czech Republic into a wider context of Central Europe, i.e. in the context of constitutional adjudication as applied in Germany, Austria, Poland, Slovakia and Hungary.
Last update: Mgr. Miroslav Sojka (17.12.2019)
The course provides knowledge and understanding of the theoretical and practical aspects of the functioning of
constitutional adjudication in the Central European region. The starting point of the course is to provide detailed
knowledge of the status and functioning of the Constitutional Court of the Czech Republic. Simultaneously, the
course places the constitutional adjudication of Czech Republic into a wider context of Central Europe, i.e. in the
context of constitutional adjudication as applied in Germany, Austria, Poland, Slovakia and Hungary. The purpose
of the comparatistics is to provide broader knowledge and to point out (institutional, procedural, material, etc.)
similarities and differences in the systems of constitutional adjudication of Central Europe as they are linked not
only by common historical and theoretical base, but also in many respects by the similar nature of problems they
recently face.
Requirements to the exam -
Last update: Ing. Svatava Marešová (16.01.2023)
Exam:
To obtain credits, students must fulfil the condition of attendance (75%), active participation in the course and elaboration of the final essay (range of at least 5 standard pages).
Means of communication: email, MS Teams
Last update: Mgr. Miroslav Sojka (17.12.2019)
To obtain credits, students must fulfil the condition of attendance (75%), active participation in the course and elaboration of the final essay (range of at least 5 standard pages).
Syllabus -
Last update: Ing. Svatava Marešová (16.01.2023)
Syllabus:
Lecture 1: Introduction I - doctrinal and institutional approaches to constitutional judicial review in developed countries and their historical roots (abstract, concrete, incidental, ex post, ex ante, concentrated, diffused etc. constitutional review), constitutional adjudication in wider context of constitutional theory (the idea of the protector of the constitutional system, Kelsen vs. Schmitt controversy, constitutional review and the principle of sovereignty, constitutional review and the constituent power etc.).
Lecture 2: Introduction II- constitutional adjudication in wider context of constitutional theory (the idea of the protector of the constitutional system, Kelsen vs. Schmitt controversy, constitutional review and the principle of sovereignty, constitutional review and the constituent power etc.).
Lecture 3: History of the theory and application of the constitutional review in Central Europe - the theoretical roots of the continental model of constitutional review (Hans Kelsen, normativist approaches), first application of the model in Central Europe in interwar period (Czechoslovakian Constitutional Court, limits of implementation of constitutional review in other Central European countries, the reaction to the authoritarian turn in the 30´s), reconstruction of constitutional review after the Second World War and its downfall under communist regimes.
Lecture 4: The recent position of the constitutional courts in the national division of power models in Central Europe - basic institutional, procedural and jurisdictional characteristics; personal organization; the creation of the constitutional courts; functional relations to other state bodies; the content and extent of competencies.
Lecture 5: Constitutional courts and their view on some of the questions of constitutional theory concerning their own position in constitutional system - Different approaches to the extent and limits of constitutional adjudication in respect to constituent power and political processes, the danger of judicial activism.
Lecture 6: Constitutional courts and international judicial authorities - positions of constitutional courts towards the jurisdiction of European Court of Human Rights and European Court of Justice.
Lecture 7: Constitutional courts of Central Europe and their stance on the question of sovereignty in the context of European integration.
Lecture 8: The constitutional courts under attack from the realm of political sphere in the Central European experience - personal emptying, personal take-overs and the reduction of competencies as tradition dangers to constitutional review.
Lecture 9: The role of constitutional courts in the processes of the decline of liberal democracy in the Central Europe I.- stance towards the pressure in the human rights discourse, stance towards the political dynamics of illiberal democracies.
Lecture 10: The role of constitutional courts in the processes of the decline of liberal democracy in the Central Europe II.: - case study: Lessons from Poland
Course Goals:
The purpose of the Course is to provide broader knowledge and to point out (institutional, procedural, material, etc.) similarities and differences in the systems of constitutional adjudication of Central Europe as they are linked not only by common historical and theoretical base, but also in many respects by the similar nature of problems they recently face.
Last update: Mgr. Miroslav Sojka (17.12.2019)
a) Introduction - doctrinal and institutional approaches to constitutional judicial review in developed countries and their historical roots (abstract, concrete, incidental, ex post, ex ante, concentrated, diffused etc. constitutional review), constitutional adjudication in wider context of constitutional theory (the idea of the protector of the constitutional system, Kelsen vs. Schmitt controversy, constitutional review and the principle of sovereignty, constitutional review and the constituent power etc.).
b) History of the theory and application of the constitutional review in Central Europe - the theoretical roots of the continental model of constitutional review (Hans Kelsen, normativist approaches), first application of the model in Central Europe in interwar period (Czechoslovakian Constitutional Court, limits of implementation of constitutional review in other Central European countries, the reaction to the authoritarian turn in the 30´s), reconstruction of constitutional review after the Second World War and its downfall under communist regimes.
c) The recent position of the constitutional courts in the national division of power models in Central Europe - basic institutional, procedural and jurisdictional characteristics; personal organization; the creation of the constitutional courts; functional relations to other state bodies; the content and extent of competencies.
d) Constitutional courts and their view on some of the questions of constitutional theory concerning their own position in constitutional system - Different approaches to the extent and limits of constitutional adjudication in respect to constituent power and political processes, the danger of judicial activism.
e) Constitutional courts and international judicial authorities - positions of constitutional courts towards the jurisdiction of European Court of Human Rights and European Court of Justice.
f) Constitutional courts of Central Europe and their stance on the question of sovereignty in the context of European integration.
g) The constitutional courts under attack from the realm of political sphere in the Central European experience - personal emptying, personal take-overs and the reduction of competencies as tradition dangers to constitutional review.
h) The role of constitutional courts in the processes of the decline of liberal democracy in the Central Europe - stance towards the pressure in the human rights discourse, stance towards the political dynamics of illiberal democracies.
Learning resources -
Last update: Mgr. Miroslav Sojka (17.12.2019)
Literature:
KELSEN, H. Pure theory of law.
SCHMITT, C. Constitutional Theory.
DE VISSER, M. Constitutional review in Europe: a comparative analysis. Oxford : Hart Publishing. 2015.
BLOKKER, Paul. New Democracies in Crisis?: A Comparative Constitutional Study of the Czech Republic, Hungary, Poland, Romania and Slovakia. Abingdon: Routledge, 2014.
BENVINDO, J. Z. On the limits of constitutional adjudication: deconstructing balancing and judicial activism. Springer. 2014
VANBERG, Georg. 2009. The politics of constitutional review in Germany. Cambridge: Cambridge University Press.
Last update: Mgr. Miroslav Sojka (17.12.2019)
Literature:
KELSEN, H. Pure theory of law.
SCHMITT, C. Constitutional Theory.
DE VISSER, M. Constitutional review in Europe: a comparative analysis. Oxford : Hart Publishing. 2015.
BLOKKER, Paul. New Democracies in Crisis?: A Comparative Constitutional Study of the Czech Republic, Hungary, Poland, Romania and Slovakia. Abingdon: Routledge, 2014.
