Comparative European Constitutional Law
University of Bergen
Mål og innhald
The aim of this course is two-fold: Firstly, the course aims to provide students with an overview of the European constitutional order on both the domestic and the international level. Secondly, the course aims to provide students with the knowledge of and skills to apply prevailing comparative legal methods in developing, interpreting and evaluating constitutional norms, institutions and systems. Both the expansion of transnational constitutional law and the increased attention being paid to national constitutional identities have stressed that comparative perspectives are an inevitable part of modern constitutional law.
While constitutional law has traditionally been considered a fundamentally domestic legal discipline, the last few decades has seen a certain convergence of constitutional law in Europe through a combination of supranational legal orders such as the ECHR and the EU, long-standing development and promotion of common European "soft law" standards on the rule of law, as well as increased communication between apex courts in different countries. For example, the concept of judicial independence, guaranteed by national constitution, can no longer be interpreted without considering the same concept on the European level and interpreted by the European Court of Human Rights and the Court of Justice of the European Union. In Europe, the interdependence of national constitutional law and international law of constitutional character has intensified the development of comparative legal methods. The ECHR, the Treaties of the EU (TEU) and the EU charter of fundamental rights are to be applied equally to all citizens despite their differing national contexts.
At the same time, one can recognize tensions between national constitutional institutions (such as constitutional courts and legislators) and the ECJ and the ECtHR. Different strategies can be identified to regulate the relationship between the national and supranational constitutional orders. Some institutions prefer cooperation while others attempt to refine and delimit the national constitutional domain from the international constitutional order.
To maintain legal certainty and foreseeability, European courts and monitoring institutions as well as national courts, legal scholars and legislators are required to critically compare constitutions in an increasingly pluralistic legal space. The EU is obliged to respect the "national identities" of the Member states as stated in Article 4.2 TEU and consider the legal definition of fundamental rights as general principles of law, partly resulting from "the constitutional traditions of the Member States" in Article 6.3. Consequently, comparative constitutional analysis is a pre-requisite when applying EU-law in constitutional matters. Within the Council of Europe legal order too, comparative law plays a key role in developing both the ECHR as well as "soft law" constitutional standards. All in all, changing narrative from the people to the peoples is necessary to understand competing constitutional structures, principles, and limitations - beyond the framework of legal sources produced within the nation state.
Using a problem-oriented approach, this course introduces the students to a series of common classic constitutional challenges, illustrated with case-law from the European Court of Justice and the European Court 13 of Human Rights and reports from the Venice Commission of the Council of Europe. By studying the problems and the comparative legal methods of the institutions, students are trained initially to critically examine how these similar problems are addressed in European constitutional settings, then to explain why differences and parallels appear. At the same time, students learn how common constitutional structures among states can be systematized and - by distinguish categories from others - describe archetypes of European constitutions and their relationship to international standards. The aim is that the students deepen their insight into substantive constitutional challenges facing a contemporary policymaker, judge or academic and learn how the same challenges can, and cannot, be resolved through comparative reasoning. Considering the historical influence of European constitutional theory, these understandings should have global relevance.
Firstly, the students will be introduced to the following theoretical background:
¿ Common constitutional traditions: the emergence of transnational European constitutionalism
¿ National constitutional identity, subsidiarity, the impact of constitutional legal culture
¿ Possibilities and limitations of comparative constitutional law: general methodological considerations
¿ Interpreting, and evaluating different approaches towards lex superior: comparative legal methods practiced in courts, supervisory institutions, and legislative assemblies in Europe.
Secondly, the above-mentioned framework is used to comparatively analyze and discuss contrasting national answers to specific substantive constitutional problems. The problems are selected in consideration of the origin of participating students, who are encouraged to bring questions and examples to class. Even though the structural focus is put on European constitutions, complementary perspectives from countries outside the Europe and the EU are welcome. This course will cover several fundamental constitutional topics such as but not limited to:
¿ Norm creation: legislative procedure and the normative force of precedent and institutional customs
¿ Preventing concentration of power: institutional structure and separation of powers
¿ Parliamentary and judicial control of the executive
¿ Judicial independence
¿ Supervising the legislature: constitutional review, electoral law, freedom of expression and information
¿ Transferring constitutional norm production to international bodies: domestic impact of the ECHR and the EU/EEA
¿ Avoiding majority dictatorship: minority protection
After this course, students should be able to give account of the fundamentals of comparative law theory, vocabulary, and method. Furthermore, the student should have detailed knowledge of characteristics of constitutional systems/cultures in Europe, common standards set by the EU and the ECHR, and comparative legal methods used in both European and national institutions and their contemporary legal practice.
Starting with general theory and methodology, students get the necessary abstract tools to compare different solutions to the specific constitutional problems and cases analyzed in class. By applying general methods on a series of several specific problems in class, students learn to identify and assess strengths and weaknesses of both different legal systems and different models of comparative legal reasoning. These skills are expected to be used and demonstrated when the students approach a comparative topic in the final home exam.
Having learnt to apply and evaluate comparative methods as used in European and national institutional practice, students should have the ability to independently plan and complete a comparative constitutional investigation in English. Students should know how to identify, exemplify, assess and explain multiple answers to common constitutional problems in Europe. This includes an ability to use constitutional legal material from one state and relate this material to a common European standard and to another legal system.
By relating constitutional solutions to both their respective national and their common broader European context, the students are trained to reach insights which should provide the student with relevant tools to normatively discuss how constitutional, and other, problems could and should be solved. Furthermore, students are fostered to self-critically and independently evaluate their own applied methods and understandings by relating to general possibilities and limitations of using comparative legal methods when making, applying, and invoking modern constitutional law in Europe. The student should be able to take advantage of these metacognitive skills in other legal and scientific disciplines. They will enhance their ability to present, discuss and analyze constitutional issues in English and within the framework of academic standards.
Krav til forkunnskapar
Three years university studies
Three years law studies
No overlapping with other courses at UiB.
Krav til studierett
The course is available for the following students:
- Admitted to the integrated master programme in law
- Admitted to the two-year master programme in law
- Granted admission to elective courses at the Faculty of Law
- Granted additional right to study following completed master degree in law at UiB
- Exchange students at the Faculty of Law
The pre-requirements may still limit certain students' access to the course
Arbeids- og undervisningsformer
Lectures and seminars. Students may be asked to prepare group presentations and students are encouraged to bring examples and perspectives from their home countries. Lecturers from at least three different legal systems will hold a panel discussion to which the students are instructed to bring questions of their own interest.
Hjelpemiddel til eksamen
A-E for pass. F for fail
Resit next semester
The reading list will be ready 1 july for the autumn semester.
According to Faculty routines
Studieutvalget ved Det Juridiske fakultet
Professor Eirik Holmøyvik
Studieseksjonen ved det juridiske fakultet