Consulta de Guies Docents



Academic Year: 2022/23

8071 - Advanced Master in Legal Sciences

32551 - The Foundations of Constitutional Law


Teaching Guide Information

Academic Course:
2022/23
Academic Center:
807 - Masters Centre of the Department of Law
Study:
8071 - Advanced Master in Legal Sciences
Subject:
32551 - The Foundations of Constitutional Law
Ambit:
---
Credits:
4.0
Course:
1
Teaching languages:
Theory: Group 1: English
Teachers:
Josep Capdeferro Pla, Pau Bossacoma Busquets, Héctor López Bofill
Teaching Period:
First quarter
Schedule:

Presentation

The revolutionary tradition of creating constitutional democracies has sometimes concealed that some key concepts of constitutionalism have been shaped after a long historical evolution. This course is thus focused on explaining the origins and development of the basic ideas that currently define liberal democracies through different historical experiences from the emergence of the modern state in preliberal times to our days.

Lessons will analyse and discuss concepts and ideas such as sovereignty, union, territorial autonomy, federalism, rule of law, separation of powers, parliamentarism, democracy, right to suffrage, constituent power, constitutional supremacy, judicial review of legislation, fundamental rights, supranational integration, secession and withdrawal. Notwithstanding the differences, these concepts are closely linked, and these ties are not merely theoretical but created through the course of history.

The initial lessons will examine the differences and similarities between ancient constitutionalism and the modern constitutionalism based on the revolutionary model of making constitutions (mainly derived from the 1789 French Revolution and the formation of the United States of America). One of the hypotheses of the course relies on the idea that revolutionary constitutionalism is embedded in notions already outlined, conceived or envisaged by ancient constitutionalism models. Under this premise, a historical approach shall have a paramount interest in the analysis of constitutionalism: an evolution from and refinement of a traditional framework of organizing power. Instead of the predominant focus on constitutional arrangements established after a revolutionary break, the course puts a renewed emphasis on constitutional arrangements gradually shaped over time, such as the ones experienced in England and the United Kingdom as well as in other countries of Europe.

Taking this historical perspective does not preclude this course being forward-looking as well. The final lessons will therefore focus on present and future challenges to which constitutional democracies must face up, namely the evolution of sovereignty, supranational integration and new demands for self-determination. In the end, by means of analysing the theoretical complexity and historical fragility of the equilibrium between all these concepts, this course aims to offer some clues on how to deal with the various problems and objections that constitutional democracies are destined to answer.

Associated skills

This course will allow students to develop skills such as:

-Linking past, present and future in a critical and challenging way

-Understanding the diachronic development of key concepts of constitutionalism 

-Examining history as a source of legitimacy for contemporary self-government

-Combining legal and academic, historical and latest texts

-Checking international and intergenerational transfers of legal and political concepts and categories

-Identifying myths and mysticism on historical and present constitutional frameworks

-Debating contemporary challenges in light of the founding ideas of constitutional law

Learning outcomes

Students should be able to analyse and discuss the evolution of key concepts and ideas of constitutional law as well as to apply these notions to current constitutional debates.

Sustainable Development Goals

#4. Quality Education #11. Sustainable cities and communities # 16. Peace, justice and strong institutions

Prerequisites

None.

Contents

1. Introduction: ancient and modern constitutionalism (Hèctor López-Bofill)

2. Before Nation-states: Composite monarchies and other historical forms of (dis)union in medieval and early-modern times (Josep Capdeferro)

3. Republicanism: Political participation and representation at different tiers of government in preliberal societies (Josep Capdeferro)

4. Historical observance of law, a test-bed for contemporary rule of law? (Josep Capdeferro)

5. The evolution of constitutionalism and the rule of law (Hèctor López-Bofill)

6. Democracy and the right to suffrage (Hèctor López-Bofill)

7. Constituent power and constitutional supremacy (Hèctor López-Bofill)

8. Fundamental rights and judicial review of legislation (Hèctor López-Bofill)

9. Federalism and the plurinational challenge (Pau Bossacoma)

10. The idea of sovereignty (Pau Bossacoma)

11. Supranational integration and the European Union (Pau Bossacoma)

12. Secession and withdrawal (Pau Bossacoma)

Final exam

Teaching Methods

Classes will be developed from a previous reading of the materials provided by the work plan. Students must read the compulsory materials before lessons in order to participate in class discussions. Participation in class will be evaluated. Reading of other materials of the work plan as well as additional ones is recommended.

Evaluation

Attendance is compulsory. Students must attend at least 80% of the sessions (either in-class or online) in order to be evaluated. Any exception will require a proper justification for non-attendance.

40% Ongoing assessment. During the course, some comments on the readings scheduled for every class will be required. 

60% Final exam. The exam will be based on the topics discussed in class and students are allowed to use any kind of material in order to answer all parts of the exam. The exam is divided in three parts, one for each professor in charge of grading it. The first part will consist in commenting on a fragment of a reading, the other two will be broad questions on the topics discussed.

Non-compulsory final essay. This may help students to improve their grades (it should not hinder the final grade provided there are no malpractices such as plagiarism). This final work may increase 20% the final mark. Since it is voluntary, a student may reach the highest grade without submitting it.

Second-chance examination. Students who would fail will be required to submit two comments on the readings in addition to a compulsory final work.

The topics of both the voluntary and the compulsory final works need to be agreed with the teacher in charge of grading it.

Bibliography and information resources

SESSION 1: Introduction: ancient and modern constitutionalism

Reading:

Charles H. McIlwain, “Some Modern Definitions of Constitutionalism” in McIlwain, Constitutionalism: Ancient and Modern. Liberty Fund, 2007, 1-22. 

 

 

SESSION 2: Before Nation-states: Composite monarchies and other historical forms of (dis)union in medieval and early-modern times

 

Reading:

Jon Arrieta, "Forms of Union. Britain and Spain, a comparative analysis” Revista Internacional de los Estudios Vascos. Cuadernos 5, 2009, 23-52.

 

Further readings:

John H. Elliott, "Dynastic Union, 1469-1625" in Elliott, Scots and Catalans. Union and disunion, Yale University Press, 2018, 6-38.

Jürgen Habermas, “The European Nation-state. Its Achievements and Its Limits. On the Past and Future of Sovereignty and Citizenship” in Gopal Balakrishnan (ed.), Mapping the Nation. Verso, 1996.

Roger A. Mason, “Debating Britain in Seventeenth-century Scotland. Multiple monarchy and Scottish sovereignty” Journal of Scottish Historical Studies 35(1), 2015, 1–24.

 

 

SESSION 3: Republicanism: Political participation and representation at different tiers of government in preliberal societies

 

Reading:

Marteen Prak, Citizens without Nations. Urban Citizenship in Europe and the World c. 1000-1789. Cambridge University Press, 2019, 140-160, corresponding to chapter 5 “Citizens, soldiers and civic militias”.

 

Further readings:

Luis R. Corteguera, For the Common Good: Popular Politics in Barcelona, 1580–1640. Cornell University Press, 2002.

Ricard Torra-Prat, “From Judici de Taula to Visitas. A Brief Overview of How Catalan Parliaments Made Public Officials Accountable” eHumanista 48, 2021, 54-62.

Vicent Baydal, “Voting in the parliaments of the Crown of Aragon, c.1300–1716”, in Miles Pattenden, Lovro Kunčević & Serena Ferente, Cultures of Voting in Pre-modern Europe. Taylor and Francis, 2018.

Wim Blockmans. "Civil Rights and Political Participation in Ancien Régime Europe". Vestnik of Saint Petersburg University. History, 2020, vol. 65, issue 3, pp. 842-864.

 

 

SESSION 4: Historical observance of law, a test-bed for contemporary rule of law?

 

Reading:

Josep Capdeferro, “The Configuration of the Tribunal de Contrafaccions of Catalonia in the Corts of 1701-1702", in Joaquim Albareda and Manuel Herrero Sánchez (ed.), Political Representation in the Ancien Régime. Routledge, 2019, chapter 14.

 

Further reading:

Dieter Grimm, Constitutionalism. Past, Present, and Future. Oxford University Press, 2016, 65-87, corresponding to chapter 2 “Basic Rights in the Formative Era of Modern Society”.

 

 

SESSION 5: The evolution of constitutionalism and the rule of law

 

Reading:

Douglass C. North and Barry R. Weingast, “Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth Century England” The Journal of Economic History 49(4), 1989, 803-832.

 

Further readings:

Friedrich A. Hayek, “The Origins of the Rule of Law” in Hayek, The Constitution of Liberty. Routledge, 1999, 162-175. 

Jeremy Waldron “The Rule of Law”. Stanford Encyclopedia of Philosophy, 2016.

 

 

SESSION 6: Democracy and the right to suffrage

 

Reading:

Walter Scheidel, The Great Leveler. PUP, 2017, 164-173. 

 

Further reading:

Giorgio Agamben, “What is a People” in Agamben Means Without End: Notes on Politics. UMP, 2000, 28-34. 

 

 

SESSION 7: Constituent power and constitutional supremacy

 

Reading:

Bruce Ackerman, Revolutionary Constitutions. Charismatic Leadership and The Rule of Law. HUP, 2019, 1-23. 

 

Further reading: 

Hèctor López-Bofill, “The concept of constituent power and the concept of constitution” in López-Bofill, Law, Violence and Constituent Power. Routledge, 2021.

 

 

SESSION 8: Fundamental rights and judicial review of legislation 

 

Readings:

Supreme Court of the United States (1803). Marbury v. Madison

Daron Acemoglu and James A. Robinson. Why Nations Fail. The Origins of Power, Prosperity, and Poverty. PRH, 2012, 96-104.

 

Further readings: 

James B. Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law”. HLR 7(3), 1983, 129-156. 

John Locke, “Second Treatise of Government” in Locke Two Treatises of Government (ed. by P. Laslett) CUP, 2015, 350-353.

Víctor Ferreres, Constitutional Courts and Democratic Values: A European Perspective. YUP, 2009.

 

 

SESSION 9: Federalism and the plurinational challenge

 

Readings:

Stephen Tierney, “Federalism and the Plurinational Challenge”, in Amnon Lev (ed.), The Federal Idea. HP, 2017, 227-242.

Stephen Tierney, “We the Peoples: Constituent Power and Constitutionalism in Plurinational States”, in Martin Loughlin and Neil Walker (ed.) The Paradox of Constitutionalism. OUP, 2008, 229-245.

 

Further readings:

Stephen Tierney, The Federal Contract. A Constitutional Theory of Federalism. Oxford: Oxford University Press, 2022.

Daniel J. Elazar, Exploring Federalism. UAP, 1987.

Wayne Norman, Negotiating Nationalism: Nation-building, Federalism, and Secession in the Multinational State. OUP, 2006.

Patricia Popelier and Maja Sahadžić (ed.), Constitutional Asymmetry in Multinational Federalism. Managing Multinationalism in Multi-tiered Systems. PM, 2019.

Pau Bossacoma, “An Egalitarian Defence of Territorial Autonomy” Revista Catalana de Dret Públic 62, pp. 90-111.

 

 

SESSION 10: The idea of sovereignty

 

Readings:

Neil Walker, “The sovereignty surplus” I•CON 18(2), 2020, 370-428.

Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty. UCP, 2005, 5-35.

Pau Bossacoma, Sovereignty in Europe. An idea in transformation. UdG, 2018, 12-23.

 

Further readings:

Francis H. Hinsley, Sovereignty. CUP, 1986.

Neil MacCormick, Questioning Sovereignty. Law, State, and Practical Reason. OUP, 1999.

Neil Walker (ed.), Sovereignty in Transition. Portland: HP, 2003.

Michael Keating, “Rethinking sovereignty. Independence-lite, devolution-max and national accommodation”. REAF, No. 16, 2012, 9-28.

 

 

SESSION 11: Supranational integration and the European Union

 

Readings:

Rousseau, Jean Jacques. A Lasting Peace through the Federation of Europe and The State of War. London: Constable, 1917.

Armin von Bogdandy, “Founding Principles of EU Law”. ELJ 16(2), 2010, 95-111.

Pau Bossacoma, Sovereignty in Europe. An idea in transformation. UdG, 2018, 27-44.

 

Further readings:

Trevor C. Hartley, The Foundations of European Union Law. OUP, 2010.

Alan Milward, The European Rescue of the Nation-State. Routledge, 2000.

Luuk Van Middelaar, The Passage to Europe. How a Continent Became a Union. YUP, 2013.

 

 

SESSION 12: Secession and withdrawal

 

Readings:

Víctor Ferreres, “Does Brexit Normalize Secession?” TILJ 53(2), 2018, pp. 139-51.

Helfer, Laurence R. “Exiting Treaties”, Virginia Law Review 91, 2005, pp. 1579-1648.

Pau Bossacoma, Morality and Legality of Secession. PM, 2020, 206-261.

 

Further readings:

Carlos Closa (ed.), Secession from a Member State and Withdrawal from the European Union. CUP, 2017.

Cass R. Sunstein, “Constitutionalism and Secession”. UCLR 58:2, 1991, pp. 633-70.

European Court of Justice (2018). Judgement Andy Wightman

Supreme Court of Canada (1998). Reference re Secession of Quebec.


Academic Year: 2022/23

8071 - Advanced Master in Legal Sciences

32551 - The Foundations of Constitutional Law


Informació de la Guia Docent

Academic Course:
2022/23
Academic Center:
807 - Masters Centre of the Department of Law
Study:
8071 - Advanced Master in Legal Sciences
Subject:
32551 - The Foundations of Constitutional Law
Ambit:
---
Credits:
4.0
Course:
1
Teaching languages:
Theory: Group 1: English
Teachers:
Josep Capdeferro Pla, Pau Bossacoma Busquets, Héctor López Bofill
Teaching Period:
First quarter
Schedule:

Presentation

The revolutionary tradition of creating constitutional democracies has sometimes concealed that some key concepts of constitutionalism have been shaped after a long historical evolution. This course is thus focused on explaining the origins and development of the basic ideas that currently define liberal democracies through different historical experiences from the emergence of the modern state in preliberal times to our days.

Lessons will analyse and discuss concepts and ideas such as sovereignty, union, territorial autonomy, federalism, rule of law, separation of powers, parliamentarism, democracy, right to suffrage, constituent power, constitutional supremacy, judicial review of legislation, fundamental rights, supranational integration, secession and withdrawal. Notwithstanding the differences, these concepts are closely linked, and these ties are not merely theoretical but created through the course of history.

The initial lessons will examine the differences and similarities between ancient constitutionalism and the modern constitutionalism based on the revolutionary model of making constitutions (mainly derived from the 1789 French Revolution and the formation of the United States of America). One of the hypotheses of the course relies on the idea that revolutionary constitutionalism is embedded in notions already outlined, conceived or envisaged by ancient constitutionalism models. Under this premise, a historical approach shall have a paramount interest in the analysis of constitutionalism: an evolution from and refinement of a traditional framework of organizing power. Instead of the predominant focus on constitutional arrangements established after a revolutionary break, the course puts a renewed emphasis on constitutional arrangements gradually shaped over time, such as the ones experienced in England and the United Kingdom as well as in other countries of Europe.

Taking this historical perspective does not preclude this course being forward-looking as well. The final lessons will therefore focus on present and future challenges to which constitutional democracies must face up, namely the evolution of sovereignty, supranational integration and new demands for self-determination. In the end, by means of analysing the theoretical complexity and historical fragility of the equilibrium between all these concepts, this course aims to offer some clues on how to deal with the various problems and objections that constitutional democracies are destined to answer.

Associated skills

This course will allow students to develop skills such as:

-Linking past, present and future in a critical and challenging way

-Understanding the diachronic development of key concepts of constitutionalism 

-Examining history as a source of legitimacy for contemporary self-government

-Combining legal and academic, historical and latest texts

-Checking international and intergenerational transfers of legal and political concepts and categories

-Identifying myths and mysticism on historical and present constitutional frameworks

-Debating contemporary challenges in light of the founding ideas of constitutional law

Learning outcomes

Students should be able to analyse and discuss the evolution of key concepts and ideas of constitutional law as well as to apply these notions to current constitutional debates.

Sustainable Development Goals

#4. Quality Education #11. Sustainable cities and communities # 16. Peace, justice and strong institutions

Prerequisites

None.

Contents

1. Introduction: ancient and modern constitutionalism (Hèctor López-Bofill)

2. Before Nation-states: Composite monarchies and other historical forms of (dis)union in medieval and early-modern times (Josep Capdeferro)

3. Republicanism: Political participation and representation at different tiers of government in preliberal societies (Josep Capdeferro)

4. Historical observance of law, a test-bed for contemporary rule of law? (Josep Capdeferro)

5. The evolution of constitutionalism and the rule of law (Hèctor López-Bofill)

6. Democracy and the right to suffrage (Hèctor López-Bofill)

7. Constituent power and constitutional supremacy (Hèctor López-Bofill)

8. Fundamental rights and judicial review of legislation (Hèctor López-Bofill)

9. Federalism and the plurinational challenge (Pau Bossacoma)

10. The idea of sovereignty (Pau Bossacoma)

11. Supranational integration and the European Union (Pau Bossacoma)

12. Secession and withdrawal (Pau Bossacoma)

Final exam

Teaching Methods

Classes will be developed from a previous reading of the materials provided by the work plan. Students must read the compulsory materials before lessons in order to participate in class discussions. Participation in class will be evaluated. Reading of other materials of the work plan as well as additional ones is recommended.

Evaluation

Attendance is compulsory. Students must attend at least 80% of the sessions (either in-class or online) in order to be evaluated. Any exception will require a proper justification for non-attendance.

40% Ongoing assessment. During the course, some comments on the readings scheduled for every class will be required. 

60% Final exam. The exam will be based on the topics discussed in class and students are allowed to use any kind of material in order to answer all parts of the exam. The exam is divided in three parts, one for each professor in charge of grading it. The first part will consist in commenting on a fragment of a reading, the other two will be broad questions on the topics discussed.

Non-compulsory final essay. This may help students to improve their grades (it should not hinder the final grade provided there are no malpractices such as plagiarism). This final work may increase 20% the final mark. Since it is voluntary, a student may reach the highest grade without submitting it.

Second-chance examination. Students who would fail will be required to submit two comments on the readings in addition to a compulsory final work.

The topics of both the voluntary and the compulsory final works need to be agreed with the teacher in charge of grading it.

Bibliography and information resources

SESSION 1: Introduction: ancient and modern constitutionalism

Reading:

Charles H. McIlwain, “Some Modern Definitions of Constitutionalism” in McIlwain, Constitutionalism: Ancient and Modern. Liberty Fund, 2007, 1-22. 

 

 

SESSION 2: Before Nation-states: Composite monarchies and other historical forms of (dis)union in medieval and early-modern times

 

Reading:

Jon Arrieta, "Forms of Union. Britain and Spain, a comparative analysis” Revista Internacional de los Estudios Vascos. Cuadernos 5, 2009, 23-52.

 

Further readings:

John H. Elliott, "Dynastic Union, 1469-1625" in Elliott, Scots and Catalans. Union and disunion, Yale University Press, 2018, 6-38.

Jürgen Habermas, “The European Nation-state. Its Achievements and Its Limits. On the Past and Future of Sovereignty and Citizenship” in Gopal Balakrishnan (ed.), Mapping the Nation. Verso, 1996.

Roger A. Mason, “Debating Britain in Seventeenth-century Scotland. Multiple monarchy and Scottish sovereignty” Journal of Scottish Historical Studies 35(1), 2015, 1–24.

 

 

SESSION 3: Republicanism: Political participation and representation at different tiers of government in preliberal societies

 

Reading:

Marteen Prak, Citizens without Nations. Urban Citizenship in Europe and the World c. 1000-1789. Cambridge University Press, 2019, 140-160, corresponding to chapter 5 “Citizens, soldiers and civic militias”.

 

Further readings:

Luis R. Corteguera, For the Common Good: Popular Politics in Barcelona, 1580–1640. Cornell University Press, 2002.

Ricard Torra-Prat, “From Judici de Taula to Visitas. A Brief Overview of How Catalan Parliaments Made Public Officials Accountable” eHumanista 48, 2021, 54-62.

Vicent Baydal, “Voting in the parliaments of the Crown of Aragon, c.1300–1716”, in Miles Pattenden, Lovro Kunčević & Serena Ferente, Cultures of Voting in Pre-modern Europe. Taylor and Francis, 2018.

Wim Blockmans. "Civil Rights and Political Participation in Ancien Régime Europe". Vestnik of Saint Petersburg University. History, 2020, vol. 65, issue 3, pp. 842-864.

 

 

SESSION 4: Historical observance of law, a test-bed for contemporary rule of law?

 

Reading:

Josep Capdeferro, “The Configuration of the Tribunal de Contrafaccions of Catalonia in the Corts of 1701-1702", in Joaquim Albareda and Manuel Herrero Sánchez (ed.), Political Representation in the Ancien Régime. Routledge, 2019, chapter 14.

 

Further reading:

Dieter Grimm, Constitutionalism. Past, Present, and Future. Oxford University Press, 2016, 65-87, corresponding to chapter 2 “Basic Rights in the Formative Era of Modern Society”.

 

 

SESSION 5: The evolution of constitutionalism and the rule of law

 

Reading:

Douglass C. North and Barry R. Weingast, “Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth Century England” The Journal of Economic History 49(4), 1989, 803-832.

 

Further readings:

Friedrich A. Hayek, “The Origins of the Rule of Law” in Hayek, The Constitution of Liberty. Routledge, 1999, 162-175. 

Jeremy Waldron “The Rule of Law”. Stanford Encyclopedia of Philosophy, 2016.

 

 

SESSION 6: Democracy and the right to suffrage

 

Reading:

Walter Scheidel, The Great Leveler. PUP, 2017, 164-173. 

 

Further reading:

Giorgio Agamben, “What is a People” in Agamben Means Without End: Notes on Politics. UMP, 2000, 28-34. 

 

 

SESSION 7: Constituent power and constitutional supremacy

 

Reading:

Bruce Ackerman, Revolutionary Constitutions. Charismatic Leadership and The Rule of Law. HUP, 2019, 1-23. 

 

Further reading: 

Hèctor López-Bofill, “The concept of constituent power and the concept of constitution” in López-Bofill, Law, Violence and Constituent Power. Routledge, 2021.

 

 

SESSION 8: Fundamental rights and judicial review of legislation 

 

Readings:

Supreme Court of the United States (1803). Marbury v. Madison

Daron Acemoglu and James A. Robinson. Why Nations Fail. The Origins of Power, Prosperity, and Poverty. PRH, 2012, 96-104.

 

Further readings: 

James B. Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law”. HLR 7(3), 1983, 129-156. 

John Locke, “Second Treatise of Government” in Locke Two Treatises of Government (ed. by P. Laslett) CUP, 2015, 350-353.

Víctor Ferreres, Constitutional Courts and Democratic Values: A European Perspective. YUP, 2009.

 

 

SESSION 9: Federalism and the plurinational challenge

 

Readings:

Stephen Tierney, “Federalism and the Plurinational Challenge”, in Amnon Lev (ed.), The Federal Idea. HP, 2017, 227-242.

Stephen Tierney, “We the Peoples: Constituent Power and Constitutionalism in Plurinational States”, in Martin Loughlin and Neil Walker (ed.) The Paradox of Constitutionalism. OUP, 2008, 229-245.

 

Further readings:

Stephen Tierney, The Federal Contract. A Constitutional Theory of Federalism. Oxford: Oxford University Press, 2022.

Daniel J. Elazar, Exploring Federalism. UAP, 1987.

Wayne Norman, Negotiating Nationalism: Nation-building, Federalism, and Secession in the Multinational State. OUP, 2006.

Patricia Popelier and Maja Sahadžić (ed.), Constitutional Asymmetry in Multinational Federalism. Managing Multinationalism in Multi-tiered Systems. PM, 2019.

Pau Bossacoma, “An Egalitarian Defence of Territorial Autonomy” Revista Catalana de Dret Públic 62, pp. 90-111.

 

 

SESSION 10: The idea of sovereignty

 

Readings:

Neil Walker, “The sovereignty surplus” I•CON 18(2), 2020, 370-428.

Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty. UCP, 2005, 5-35.

Pau Bossacoma, Sovereignty in Europe. An idea in transformation. UdG, 2018, 12-23.

 

Further readings:

Francis H. Hinsley, Sovereignty. CUP, 1986.

Neil MacCormick, Questioning Sovereignty. Law, State, and Practical Reason. OUP, 1999.

Neil Walker (ed.), Sovereignty in Transition. Portland: HP, 2003.

Michael Keating, “Rethinking sovereignty. Independence-lite, devolution-max and national accommodation”. REAF, No. 16, 2012, 9-28.

 

 

SESSION 11: Supranational integration and the European Union

 

Readings:

Rousseau, Jean Jacques. A Lasting Peace through the Federation of Europe and The State of War. London: Constable, 1917.

Armin von Bogdandy, “Founding Principles of EU Law”. ELJ 16(2), 2010, 95-111.

Pau Bossacoma, Sovereignty in Europe. An idea in transformation. UdG, 2018, 27-44.

 

Further readings:

Trevor C. Hartley, The Foundations of European Union Law. OUP, 2010.

Alan Milward, The European Rescue of the Nation-State. Routledge, 2000.

Luuk Van Middelaar, The Passage to Europe. How a Continent Became a Union. YUP, 2013.

 

 

SESSION 12: Secession and withdrawal

 

Readings:

Víctor Ferreres, “Does Brexit Normalize Secession?” TILJ 53(2), 2018, pp. 139-51.

Helfer, Laurence R. “Exiting Treaties”, Virginia Law Review 91, 2005, pp. 1579-1648.

Pau Bossacoma, Morality and Legality of Secession. PM, 2020, 206-261.

 

Further readings:

Carlos Closa (ed.), Secession from a Member State and Withdrawal from the European Union. CUP, 2017.

Cass R. Sunstein, “Constitutionalism and Secession”. UCLR 58:2, 1991, pp. 633-70.

European Court of Justice (2018). Judgement Andy Wightman

Supreme Court of Canada (1998). Reference re Secession of Quebec.


Academic Year: 2022/23

8071 - Advanced Master in Legal Sciences

32551 - The Foundations of Constitutional Law


Información de la Guía Docente

Academic Course:
2022/23
Academic Center:
807 - Masters Centre of the Department of Law
Study:
8071 - Advanced Master in Legal Sciences
Subject:
32551 - The Foundations of Constitutional Law
Ambit:
---
Credits:
4.0
Course:
1
Teaching languages:
Theory: Group 1: English
Teachers:
Josep Capdeferro Pla, Pau Bossacoma Busquets, Héctor López Bofill
Teaching Period:
First quarter
Schedule:

Presentation

The revolutionary tradition of creating constitutional democracies has sometimes concealed that some key concepts of constitutionalism have been shaped after a long historical evolution. This course is thus focused on explaining the origins and development of the basic ideas that currently define liberal democracies through different historical experiences from the emergence of the modern state in preliberal times to our days.

Lessons will analyse and discuss concepts and ideas such as sovereignty, union, territorial autonomy, federalism, rule of law, separation of powers, parliamentarism, democracy, right to suffrage, constituent power, constitutional supremacy, judicial review of legislation, fundamental rights, supranational integration, secession and withdrawal. Notwithstanding the differences, these concepts are closely linked, and these ties are not merely theoretical but created through the course of history.

The initial lessons will examine the differences and similarities between ancient constitutionalism and the modern constitutionalism based on the revolutionary model of making constitutions (mainly derived from the 1789 French Revolution and the formation of the United States of America). One of the hypotheses of the course relies on the idea that revolutionary constitutionalism is embedded in notions already outlined, conceived or envisaged by ancient constitutionalism models. Under this premise, a historical approach shall have a paramount interest in the analysis of constitutionalism: an evolution from and refinement of a traditional framework of organizing power. Instead of the predominant focus on constitutional arrangements established after a revolutionary break, the course puts a renewed emphasis on constitutional arrangements gradually shaped over time, such as the ones experienced in England and the United Kingdom as well as in other countries of Europe.

Taking this historical perspective does not preclude this course being forward-looking as well. The final lessons will therefore focus on present and future challenges to which constitutional democracies must face up, namely the evolution of sovereignty, supranational integration and new demands for self-determination. In the end, by means of analysing the theoretical complexity and historical fragility of the equilibrium between all these concepts, this course aims to offer some clues on how to deal with the various problems and objections that constitutional democracies are destined to answer.

Associated skills

This course will allow students to develop skills such as:

-Linking past, present and future in a critical and challenging way

-Understanding the diachronic development of key concepts of constitutionalism 

-Examining history as a source of legitimacy for contemporary self-government

-Combining legal and academic, historical and latest texts

-Checking international and intergenerational transfers of legal and political concepts and categories

-Identifying myths and mysticism on historical and present constitutional frameworks

-Debating contemporary challenges in light of the founding ideas of constitutional law

Learning outcomes

Students should be able to analyse and discuss the evolution of key concepts and ideas of constitutional law as well as to apply these notions to current constitutional debates.

Sustainable Development Goals

#4. Quality Education #11. Sustainable cities and communities # 16. Peace, justice and strong institutions

Prerequisites

None.

Contents

1. Introduction: ancient and modern constitutionalism (Hèctor López-Bofill)

2. Before Nation-states: Composite monarchies and other historical forms of (dis)union in medieval and early-modern times (Josep Capdeferro)

3. Republicanism: Political participation and representation at different tiers of government in preliberal societies (Josep Capdeferro)

4. Historical observance of law, a test-bed for contemporary rule of law? (Josep Capdeferro)

5. The evolution of constitutionalism and the rule of law (Hèctor López-Bofill)

6. Democracy and the right to suffrage (Hèctor López-Bofill)

7. Constituent power and constitutional supremacy (Hèctor López-Bofill)

8. Fundamental rights and judicial review of legislation (Hèctor López-Bofill)

9. Federalism and the plurinational challenge (Pau Bossacoma)

10. The idea of sovereignty (Pau Bossacoma)

11. Supranational integration and the European Union (Pau Bossacoma)

12. Secession and withdrawal (Pau Bossacoma)

Final exam

Teaching Methods

Classes will be developed from a previous reading of the materials provided by the work plan. Students must read the compulsory materials before lessons in order to participate in class discussions. Participation in class will be evaluated. Reading of other materials of the work plan as well as additional ones is recommended.

Evaluation

Attendance is compulsory. Students must attend at least 80% of the sessions (either in-class or online) in order to be evaluated. Any exception will require a proper justification for non-attendance.

40% Ongoing assessment. During the course, some comments on the readings scheduled for every class will be required. 

60% Final exam. The exam will be based on the topics discussed in class and students are allowed to use any kind of material in order to answer all parts of the exam. The exam is divided in three parts, one for each professor in charge of grading it. The first part will consist in commenting on a fragment of a reading, the other two will be broad questions on the topics discussed.

Non-compulsory final essay. This may help students to improve their grades (it should not hinder the final grade provided there are no malpractices such as plagiarism). This final work may increase 20% the final mark. Since it is voluntary, a student may reach the highest grade without submitting it.

Second-chance examination. Students who would fail will be required to submit two comments on the readings in addition to a compulsory final work.

The topics of both the voluntary and the compulsory final works need to be agreed with the teacher in charge of grading it.

Bibliography and information resources

SESSION 1: Introduction: ancient and modern constitutionalism

Reading:

Charles H. McIlwain, “Some Modern Definitions of Constitutionalism” in McIlwain, Constitutionalism: Ancient and Modern. Liberty Fund, 2007, 1-22. 

 

 

SESSION 2: Before Nation-states: Composite monarchies and other historical forms of (dis)union in medieval and early-modern times

 

Reading:

Jon Arrieta, "Forms of Union. Britain and Spain, a comparative analysis” Revista Internacional de los Estudios Vascos. Cuadernos 5, 2009, 23-52.

 

Further readings:

John H. Elliott, "Dynastic Union, 1469-1625" in Elliott, Scots and Catalans. Union and disunion, Yale University Press, 2018, 6-38.

Jürgen Habermas, “The European Nation-state. Its Achievements and Its Limits. On the Past and Future of Sovereignty and Citizenship” in Gopal Balakrishnan (ed.), Mapping the Nation. Verso, 1996.

Roger A. Mason, “Debating Britain in Seventeenth-century Scotland. Multiple monarchy and Scottish sovereignty” Journal of Scottish Historical Studies 35(1), 2015, 1–24.

 

 

SESSION 3: Republicanism: Political participation and representation at different tiers of government in preliberal societies

 

Reading:

Marteen Prak, Citizens without Nations. Urban Citizenship in Europe and the World c. 1000-1789. Cambridge University Press, 2019, 140-160, corresponding to chapter 5 “Citizens, soldiers and civic militias”.

 

Further readings:

Luis R. Corteguera, For the Common Good: Popular Politics in Barcelona, 1580–1640. Cornell University Press, 2002.

Ricard Torra-Prat, “From Judici de Taula to Visitas. A Brief Overview of How Catalan Parliaments Made Public Officials Accountable” eHumanista 48, 2021, 54-62.

Vicent Baydal, “Voting in the parliaments of the Crown of Aragon, c.1300–1716”, in Miles Pattenden, Lovro Kunčević & Serena Ferente, Cultures of Voting in Pre-modern Europe. Taylor and Francis, 2018.

Wim Blockmans. "Civil Rights and Political Participation in Ancien Régime Europe". Vestnik of Saint Petersburg University. History, 2020, vol. 65, issue 3, pp. 842-864.

 

 

SESSION 4: Historical observance of law, a test-bed for contemporary rule of law?

 

Reading:

Josep Capdeferro, “The Configuration of the Tribunal de Contrafaccions of Catalonia in the Corts of 1701-1702", in Joaquim Albareda and Manuel Herrero Sánchez (ed.), Political Representation in the Ancien Régime. Routledge, 2019, chapter 14.

 

Further reading:

Dieter Grimm, Constitutionalism. Past, Present, and Future. Oxford University Press, 2016, 65-87, corresponding to chapter 2 “Basic Rights in the Formative Era of Modern Society”.

 

 

SESSION 5: The evolution of constitutionalism and the rule of law

 

Reading:

Douglass C. North and Barry R. Weingast, “Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth Century England” The Journal of Economic History 49(4), 1989, 803-832.

 

Further readings:

Friedrich A. Hayek, “The Origins of the Rule of Law” in Hayek, The Constitution of Liberty. Routledge, 1999, 162-175. 

Jeremy Waldron “The Rule of Law”. Stanford Encyclopedia of Philosophy, 2016.

 

 

SESSION 6: Democracy and the right to suffrage

 

Reading:

Walter Scheidel, The Great Leveler. PUP, 2017, 164-173. 

 

Further reading:

Giorgio Agamben, “What is a People” in Agamben Means Without End: Notes on Politics. UMP, 2000, 28-34. 

 

 

SESSION 7: Constituent power and constitutional supremacy

 

Reading:

Bruce Ackerman, Revolutionary Constitutions. Charismatic Leadership and The Rule of Law. HUP, 2019, 1-23. 

 

Further reading: 

Hèctor López-Bofill, “The concept of constituent power and the concept of constitution” in López-Bofill, Law, Violence and Constituent Power. Routledge, 2021.

 

 

SESSION 8: Fundamental rights and judicial review of legislation 

 

Readings:

Supreme Court of the United States (1803). Marbury v. Madison

Daron Acemoglu and James A. Robinson. Why Nations Fail. The Origins of Power, Prosperity, and Poverty. PRH, 2012, 96-104.

 

Further readings: 

James B. Thayer, “The Origin and Scope of the American Doctrine of Constitutional Law”. HLR 7(3), 1983, 129-156. 

John Locke, “Second Treatise of Government” in Locke Two Treatises of Government (ed. by P. Laslett) CUP, 2015, 350-353.

Víctor Ferreres, Constitutional Courts and Democratic Values: A European Perspective. YUP, 2009.

 

 

SESSION 9: Federalism and the plurinational challenge

 

Readings:

Stephen Tierney, “Federalism and the Plurinational Challenge”, in Amnon Lev (ed.), The Federal Idea. HP, 2017, 227-242.

Stephen Tierney, “We the Peoples: Constituent Power and Constitutionalism in Plurinational States”, in Martin Loughlin and Neil Walker (ed.) The Paradox of Constitutionalism. OUP, 2008, 229-245.

 

Further readings:

Stephen Tierney, The Federal Contract. A Constitutional Theory of Federalism. Oxford: Oxford University Press, 2022.

Daniel J. Elazar, Exploring Federalism. UAP, 1987.

Wayne Norman, Negotiating Nationalism: Nation-building, Federalism, and Secession in the Multinational State. OUP, 2006.

Patricia Popelier and Maja Sahadžić (ed.), Constitutional Asymmetry in Multinational Federalism. Managing Multinationalism in Multi-tiered Systems. PM, 2019.

Pau Bossacoma, “An Egalitarian Defence of Territorial Autonomy” Revista Catalana de Dret Públic 62, pp. 90-111.

 

 

SESSION 10: The idea of sovereignty

 

Readings:

Neil Walker, “The sovereignty surplus” I•CON 18(2), 2020, 370-428.

Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty. UCP, 2005, 5-35.

Pau Bossacoma, Sovereignty in Europe. An idea in transformation. UdG, 2018, 12-23.

 

Further readings:

Francis H. Hinsley, Sovereignty. CUP, 1986.

Neil MacCormick, Questioning Sovereignty. Law, State, and Practical Reason. OUP, 1999.

Neil Walker (ed.), Sovereignty in Transition. Portland: HP, 2003.

Michael Keating, “Rethinking sovereignty. Independence-lite, devolution-max and national accommodation”. REAF, No. 16, 2012, 9-28.

 

 

SESSION 11: Supranational integration and the European Union

 

Readings:

Rousseau, Jean Jacques. A Lasting Peace through the Federation of Europe and The State of War. London: Constable, 1917.

Armin von Bogdandy, “Founding Principles of EU Law”. ELJ 16(2), 2010, 95-111.

Pau Bossacoma, Sovereignty in Europe. An idea in transformation. UdG, 2018, 27-44.

 

Further readings:

Trevor C. Hartley, The Foundations of European Union Law. OUP, 2010.

Alan Milward, The European Rescue of the Nation-State. Routledge, 2000.

Luuk Van Middelaar, The Passage to Europe. How a Continent Became a Union. YUP, 2013.

 

 

SESSION 12: Secession and withdrawal

 

Readings:

Víctor Ferreres, “Does Brexit Normalize Secession?” TILJ 53(2), 2018, pp. 139-51.

Helfer, Laurence R. “Exiting Treaties”, Virginia Law Review 91, 2005, pp. 1579-1648.

Pau Bossacoma, Morality and Legality of Secession. PM, 2020, 206-261.

 

Further readings:

Carlos Closa (ed.), Secession from a Member State and Withdrawal from the European Union. CUP, 2017.

Cass R. Sunstein, “Constitutionalism and Secession”. UCLR 58:2, 1991, pp. 633-70.

European Court of Justice (2018). Judgement Andy Wightman

Supreme Court of Canada (1998). Reference re Secession of Quebec.