Prof. Dr. Dr.h.c. Thomas Fleiner  and Prof. Dr. Lidija R. Basta Fleiner

Comparative Constitutional Law

see also: here

-         Master Course, Law Faculty University of Belgrade

-         November 23^rd – December 11^th, 2009 –

Aims of the Course:

The course aims to equip students for comparative analysis of major constitutional principles and institutions. In order to do so the course will introduce students into the methods of comparative constitutional law and comparative politics of constitution.

Course Description:

a) Thematic Focus and Structure

The course will develop the basic principles applicable for comparative constitutional law and will compare the constitutional systems of UK, USA, France and Germany as most important examples of the key differences including common-law and continental law constitutional traditions. The constitutions of Switzerland and Serbia and the Treaty of Lisbon will always remain key references. We will analyze the challenges of multiculturalism and globalization for post-modern constitutional democracies. We shall also deal with procedural and constitutional principles and designs - such as federalism - aimed at conflict management in the societies with ethnic tensions and those coming out of ethnic wars. During these three weeks students should get familiar with current constitutional problems that states face as regards European integration, migration and the universality of human rights.

The three week course will cover four different topics: I. Introduction into the method of comparative constitutional law, different approaches on constitution making and the principles of democratic constitutionalism. II. The Rule of Law, Human Rights and Constitutional Review. III. Different governmental systems and constitutional designs, including federalism as a conflict-management device. IV Constitutional challenges for the States in transition.

b) Method

The students will be encouraged to make own judgments on current constitutional issues. They will have to discuss on particularly controversial issues and argue their position with the help of comparative and theoretical background they get acquainted with during the course. For this reason the course will involve both taught and interactive elements: 18 lectures and 10 classes of practical work involving workshops with a group-work and presentations of group-work results in plenary sessions.In the week following the course the students will be asked to produce a short paper of maximum 15’000 characters (no space) on one of the topics summarizing key insights they gained from the course

Assessment

Evaluation methods will take into account active participation during the classes and workshops, including short presentations and discussions of the group-work results. The quality of the paper to be prepared in the week following the course will also be an element of an overall assessment. .

Time table here

 I – Introductory Topics:

Lectures 1 - 2 (two classes):

Introduction into the method of comparative constitutional law

Presentation here

(Th. Fleiner)

Lectures 3 - 4 (two classes):

Constitution Making and Nation Building

(L. Basta Fleiner)

Lectures 5 - 6 (two classes):

Democratic Governance

(Th. Fleiner)

Presentation

II – Constitutionalism and the Rule of Law in the 21^st Century

Lectures 7 - 8 (two classes):

Democracy and the Rule of Law

(L. Basta Fleiner)

Lectures 9 – 10 (two classes):

Constitutional Politics of Human Rights

(L. Basta Fleiner)

Lectures 11 – 12 (two classes):

Common Law and Civil Law Compared

Presentation here

– Judiciary and Constitutional Review

Presentation here

(Th. Fleiner)

Part III – Different Governmental Systems and Major Constitutional Designs in Multicultural Societies

Lectures 13 – 14 (2 classes):

Governmental Systems Compared: How to Evaluate Different Governmental Systems

(Th. Fleiner)

Lectures 15 – 16 (2 classes):

Presentation here

Constitutional Designs and Conflict Management

(L. Basta Fleiner)

Part IV – Democratic Transition and Consolidation – Constitutions in Action

Lectures 17 – 18 (2 classes)

The Paradigm of Democratic Transition and the Western Balkans

 (L. Basta Fleiner)

Workshops (PW)

PW1 ( 2 classes):

The Values and Challenges of Comparative Legal Reasoning

Brewer vs. Scalia Debate 0n the Introduction of Art 39 of the South African Constitution: 

Question: Given the provision in Article 142, para 2 of the Constitution of Serbia would you or would you not in addition introduce the solution provided in Article 39 of the SA Constitution? Please give pro and contra arguments.         

Documentation: Debate Scalia v. Brewer here

PW 2 (2 classes):

The Treaty of Lisbon and Democratic Governance here

Question: In what sense does the Treaty of Lisbon further develop the principles of democratic governance? Please look at the question in the light of the arguments of the German Constitutional Court on Lisbon Treaty.

Documentation: Lisbon Treaty and the Decision of the German Constitutional Court

Presentation Lisbontreaty

PW 3 (2 classes):

Marbury v. Madison - the First Case of Judicial Constitutional Review  

Question: What are the main arguments for introducing judicial constitutional review? Could a supreme court in a continental/civil law country reach the same conclusions?

Documentation: Marbury v. Madison here

Presentation here

PW 4 (2 classes):

Evaluation of the Governmental System in the Serbian Constitution of 2006

Question: How do you evaluate the governmental system in Serbia with respect to the discussed criteria for comparing and evaluating different governmental systems? Should the system in Serbia be changed, or should criteria be changed? Please provide the arguments for either position.

Documentation: Constitution of Serbia (English translation) here

PW 5 (2 classes):

The Opinion of the Venice Commission on the 2006 Constitution of Serbia – the Part on Human and Minority Rights

 Question: How do you interpret critical observations of the Venice Commission concerning Part II on Human and Minority Rights and Freedoms? Please provide arguments pro and con the Opinion. Discussion will focus primarily on minority rights.

Documentation: Opinion on the Constitution of Serbia: here

Final Examination Paper:

Questions for the final paper here:

Papers should be handed in by email not later than January  31st 2010 to Prof. Lidija Basta Fleiner <lb@lbasta.com>