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89943 - The Legal And Constitutional Foundations Of Society

Academic Year 2020/2021

                
                        Docente:
                        Paulus Albertus Blokker
                    
                        Credits:
                        8
                    
                        SSD:
                        SPS/11
                    
                        Language:
                        English
                    
                        Teaching Mode:
                        Traditional lectures
                        
                            Campus:
                            Bologna
                        
                            Corso:
                            Second cycle degree programme (LM) in
                            Sociology and Social Work (cod. 8786)

                            Teaching resources on Virtuale

Learning outcomes

At the end of the course, the student will be capable of identifying some of the key functions of constitutions, as well as some of the key political and social tensions in contemporary constitutional democracies. Sociological analysis will be introduced to explore constitutions as complex, but essential, institutions of democratic societies (providing legitimacy, guaranteeing democratic rights, protecting identity, stimulating societal integration). The course introduces the student to the analysis and understanding of: - the social and societal functions of constitutions and constitutional norms; - the role of societal actors in constitutional politics and constitutional change; - the relation between societal transformation, technocracy, and populism; - the populist critique on liberal, constitutional democracy; - the relation between European integration and constitutional-democratic change. The course will introduce students to various sociological approaches to the study of (European) constitutionalism, analyze socially relevant dimensions of constitutions, and apply some of this knowledge in the study of societal and constitutional transformation in Europe.

Course contents

Programme

The module deals with pressing challenges in contemporary Europe: the crisis of the Rule of Law (RoL) and the backlash against human rights (and international judicial institutions). The approach is interdisciplinary, with an emphasis on sociological and socio-legal studies. In order to understand the complexity of the RoL, and the current challenges it faces, a comprehensive analytical approach is needed, in which the societal and cultural dimensions are duly taken into account. The course starts with an in-depth discussion of the (established legal) meanings of the RoL, human rights, and constitutionalism, to, in a second step, discusses the cultural, sociological, and societal dimensions of these legal institutions. Such dimensions have not been examined widely, and hence a key objective of the course is to explore national legal cultures and legal consciousness, in order situate legal institutions and to show how the RoL and constitutionalism operate in distinctive societal contexts.

The course draws importantly on the emerging subdiscipline of sociological constitutionalism (Blokker and Thornhill 2017) as well as on various socio-legal approaches and comparative analysis of European legal cultures (cf. Gesner/Nelken 2007; Grødeland/Miller 2015). A sociological approach to constitutions, human rights, and the RoL understand these legal institutions in a context-sensitive manner and investigates how these have become central elements in the integration of modern societies, by shaping, orienting, and regulating politics as well as social interaction. In the European context, it is clear that societies have been part of a process of legal and democratic convergence. The general idea with regard to the rule of law in Europe is that the European Union member states are converging on a European understanding of the rule of law. In other words, what characterizes the EU as a politial unit is a normative consensus on what the rule of law is and how it works. But even if processes of Europeanization and supranational constitutionalization play an important role in domestic European societies, distinctive national constitutional cultures and traditions endure. Distinctive differences can be demonstrated, not least between East and West. As the current challenges make clear, differences in the understanding of the RoL and constitutionalism remain important, and call for an extensive comparative analysis, which investigates the variety of legal traditions and histories, and the political and cultural legacies that shape the legal cultures of contemporary EU member states. Key questions related to what dimensions of the RoL and constitutionalism are shared between societies, and which dimensions are understood differently, challenged, and, in some cases, significantly umdermined.

The course aims at stimulating students to address constitutional and legal matters from a sociological perspective, in this way clarifying the deeply sociological nature of the RoL, human rights, and constitutional foundations, and the consequences of socio-legal insights for the actual functioning of the law. A plurality of approaches to a constitutional sociology will be discussed, including Luhmannian, historical-sociological, phenomenological, and political-sociological approaches. The course will distinguish between approaches and apply these in the sociological exploration of constitutional traditions and norms in European countries and of the European Union at large.

Weekly programme

Week 1 Introduction: European legal cultures and the rule of law crisis

The general idea with regard to the rule of law in Europe is that the European Union member states are converging on a European understanding of the rule of law. In other words, what characterizes the EU as a political unit is a normative consensus on what the rule of law is and how it works. At the same time, it is generally recognized that there are significantly different historical traditions with regard to legal culture in Europe, such as, for instance, the UK’s common law, the German idea of the Rechtsstaat, the French État de droit, or the Italian stato di diritto. We will explore the concept of the rule of law in the light of its European development and investigate the current Rule of Law crisis.

Readings

Blokker, Paul, 2016, chapter 'EU Democratic Oversight and Domestic Deviation from the Rule of Law: Sociological Reflections', in: C. Closa and D. Kochenov (eds), Reinforcing the Rule of Law Oversight in the European Union, Cambridge University Press, 249-270.

Gibson, James L. and Gregory A. Caldeira (1996), ‘The Legal Cultures of Europe’, Law & Society Review, Vol. 30, No. 1, pp. 55-86.

Recommended

Palombella, Gianluigi (2008), ‘The Rule of Law and its Core’, in: Palombella, G. and Walker, N. (eds) (2008), Relocating the rule of law, Hart Publishing.

Michel Rosenfeld, The Rule of Law and the Legitimacy of Constitutional Democracy, 74 S. Cal. L. Rev. 1307 (2001).

Week 2 A socio-legal approach to constitutional traditions and the rule of law in Europe

A socio-legal approach investigates the rule of law in its societal context. The European context offers a significant ‘laboratory’ of different traditions and historical developments. A key question regards how to study such differences and how to conceptualize and compare both different institutional set-ups and variegating cultures. In order to study legal cultures and traditions, different approaches can be identified, including Luhmannian, historical-sociological, cultural-sociological, and political-sociological approaches. A sociological/socio-legal approach will be explained, while the different understandings of constitutional cultures and the rule of law will be discussed.

Readings

Åse B. Grødeland, William L. Miller, ‘One European legal culture or several?’, in: Grødeland, Å. B., & Miller, W. L. (2015). European Legal Cultures in Transition. Cambridge University Press, pp. 1-29.

Cotterrell, R., 2007. Images of Europe in sociolegal traditions. In: Volkmar Gessner and David Nelken (eds.), European Ways of Law: Towards a European Sociology of Law, Hart, pp. 21-40.

Recommended

Vorländer, H., 2017. Constitutions as symbolic orders. The cultural analysis of constitutionalism, in:: P. Blokker and C. Thornhill (eds), Sociological constitutionalism. Cambridge University Press, Cambridge, pp. 209-240.

Schluchter, Wolfgang. "The sociology of law as an empirical theory of validity." Journal of Classical Sociology 2.3 (2002): 257-280.

Thornhill, C. (2017), ‘The Sociology of Constitutions’. Annual Review of Law and Social Science, 13, pp.493-513.

Week 3 European Integration as integration-through-law

European integration consists in integration-through-law. The European project prominently involves a process of incremental constitutionalization and an increasing role of rights. We will discuss to what extent the emphasis on legal integration in Europe is both an asset and a potential liability. Distinctive problem areas regard the ‘democratic deficit’, the lack of citizens’ engagement, and continuing divergence in the interpretation and understanding of the rule of law.

Readings

Lenaerts, K., 2019. Limits on Limitations: The Essence of Fundamental Rights in the EU. German Law Journal, 20(6), pp.779-793.

Blokker, P. (2019), ‘Constitutionalism, judicialization, and human rights in the integration of European society’, in: Johann Arnason (ed.), European Integration: Historical Trajectories, Geopolitical Contexts, Edinburgh University Press.

Recommended

Dawson, Mark, and Floris Witte. "Constitutional Balance in the EU after the Euro‐Crisis." The Modern Law Review 76.5 (2013): 817-844.

Frerichs, S. (2010), ‘Constitutional ideal types in the global age: a sociological review’, in: K. Tuori and S. Sankari (eds.), The Many Constitutions of Europe, Ashgate, pp.69-88.

Week 4 Human Rights in Europe

The role of human rights in Europe has been very prominent since 1945, and particularly so from the 1970s onwards. The current crisis regarding the rule of law has a parallel in a backlash against human rights. We will study the conflictual institutionalization of human rights in Europe, in both the European Convention of Human Rights and the European Charter of Fundamental Rights, while the current backlash against human rights and international courts will be analyzed at the end of the course (week 9).

Readings

Madsen, M.R., International human rights and the transformation of European society: from ‘Free Europe’ to the Europe of human rights, in M. Madsen e C. Thornhill (eds), Law and the Formation of Modern Europe: Perspectives from the Historical Sociology of Law, Cambridge: Cambridge University Press, 2014, pp. 245-274.

Recommended

Madsen, M.R., ‘Human Rights and European Integration: From Institutional Divide to Convergent Practice’, in N. Kauppi (a cura di), A Political Sociology of Transnational Europe, Colchester: ECPR Press, 2013, pp. 147-165.

Week 5 Rule of law differences between East and West

A significant source of difference in Europe is constituted by the diverse historical experiences between East and West. It is clear that the 40 or so years of experience with communism, and with socialist legality, in the Eastern part of Europe has played an important role in its rule of law development. In fact, socialist legality is frequently displayed as the opposite of the rule of law, as it was supposedly based on some form of ‘telephone justice. While in recent years, historians have shown a more complex picture, the legacy of socialist legality is of clear relevance for the rule of law development after 1989, in the context of Central and Eastern European countries joining the Council of Europe and the European Union.

Readings

Krygier, M. (2019), ‘The Challenge of Institutionalisation: Post-Communist ‘Transitions’, Populism, and the Rule of Law’, European Constitutional Law Review, 15(3), pp. 544-573.

Forthcoming, P. Blokker, ‘Building democracy by legal means? The contestation of human rights and constitutionalism in East-Central Europe’, in: Journal of Modern European History.

Recommended

Richardson-Little, N., Dietz, H. and Mark, J., 2019. New Perspectives on Socialism and Human Rights in East Central Europe since 1945. East Central Europe, 46(2-3), pp.169-187.

Frerichs, S. (2010), ‘Constitutional ideal types in the global age: a sociological review’, in: K. Tuori and S. Sankari (eds.), The Many Constitutions of Europe, Ashgate, pp.69-88.

Week 6 Constitutions and Illiberal Democracy in New EU Member States

The new democracies in Central and Eastern Europe have embarked on the constitutionalization of democratic regimes since at least the early 1990s. A specific form of constitutionalization has taken place, in the form of so-called new constitutionalism, an understanding of constitutionalism strongly promoted by the EU as well as the Council of Europe, and grounded in a post-WWII project of anti-totalitarianism and anti-authoritarianism. In recent years, various countries – in particular Hungary and Poland – have turned against this form of constitutionalism, which puts strong emphasis on robust and independent judicial institutions as well as judicial review. Such forms of ‘backsliding’ involve conservative, populist political projects, which claim to be instituting alternative forms of constitutionalism.

Readings

Skąpska, G., 2019. ‘Abuse of the Constitution as a Means of Political Change: Sociological Reflections on the Crisis of Constitutionalism in Poland’, Polish Sociological Review, 208(4), pp. 421-438.

Recommended

Blokker, Paul, fc, ‘Populist Constitutionalism in East-Central Europe’, in: S. Hardt (ed.), Liberal constitutionalism in a populist age, Eleven Publishing.

Grazyna Skapska (2018), ‘The Decline of Liberal Constitutionalism in East Central Europe’, in Peeter Vihalemm, Anu Masso & Signe Opermann, eds, The Routledge International Handbook of European Social Transformations (Routledge: London 2018): 130-145.

Week 7 Does the EU have a constitution?

The process of integration-through-law has created an extensive system of EU law. But can the EU also be said to have a constitution, understood in a political sense? The political project to adopt a constitution in the Convention of the Future of Europe in the early 2000s ultimately led to failure. The current Conference on the Future of Europe (2020) appears to re-open the debate. We will discuss the reasons why the EU would need an explicit political constitution and what the current constitutional challenges to the European project are, including the (potential) role of citizens in a constitution-making process.

Readings

Thornhill, Chris. "The formation of a European constitution: an approach from historical-political sociology." International Journal of Law in Context 8.03 (2012): 354-393.

Alemanno, A., 2020. Europe’s Democracy Challenge: Citizen Participation in and Beyond Elections. German Law Journal, 21(1), pp.35-40.

Recommended

Alemanno, A. (2020), The EU won’t fix its democratic deficit with another top-down ‘conference’, The Guardian, 21 January 2020.

Cohen, Antonin e Antoine Vauchez (2008), ‘Back to the 'Future of Europe': A Political Sociology of EU Constitutional Saga’, EUI Working Paper, RSCAS 2008/33.

Week 8 Constitutional mobilization, resistance and legal consciousness

The rule of law crisis in distinctive European countries – such as Poland and Hungary, but also Romania, Slovakia, and Malta – has led to important societal mobilization and societal as well as political and judicial resistance to the crisis of the rule of law and democracy. A political-sociological approach can importantly help to study such mobilization and resistance, drawing on social movement studies, political theory, and political sociology or the sociology of conflict. In addition, extensive attention will be paid to the perception of the RoL in wider public opinion and legal consciousness.

Readings

Karolewski, I.P., 2016. Protest and participation in post-transformation Poland: The case of the Committee for the Defense of Democracy (KOD). Communist and Post-Communist Studies, 49(3), pp.255-267.

Ursu, R., ‘In the Name of the Law’, in: A. Adi and D.G. Lilleker (eds.), #rezist – Romania’s 2017, anti-corruption protests: causes, development and implications (2017, Quadriga University of Applied Sciences 2017), pp. 39-42, 39.

Hertogh, M. (2018), ‘The Myth of Dutch Legal Culture’, in: Nobody's Law: Legal Consciousness and Legal Alienation in Everyday Life. Springer.

Recommended

Babicka-Wirkus, A., 2018. Politics of Resistance in the Context of Polish Democracy. Chowanna, (51 (2)), pp. 277-299.

Jolley, R. and Steinfeld, J., 2019. Protest works: Two activists on how their protest movements led to real political change in Hungary and Romania. Index on Censorship, 48(4), pp.69-72.

della Porta, D. and Felicetti, A., 2019. ‘Innovating Democracy Against Democratic Stress in Europe: Social Movements and Democratic Experiments’. Representation, pp.1-18.

Week 9 Human Rights Backlash? Critique of the European Courts

It is paradoxical that the consolidation of a human rights regime in Europe in the 1970s , and in particular the 1990s, which has seen the convergence of the CoE and the EU on human rights protection, has not lasted for long, and is now faced with an ever stronger national resistance against the ECtHR on the one hand, and more generally against the EU’s constitutional and rule of law order, on the other. There are signs of strong resistance against the liberal project of constitutionalism and human rights, not only in Eastern but also Western Europe.

Readings

Madsen, M. R., ‘The challenging authority of the European Court of Human Rights: from Cold War legal diplomacy to the Brighton Declaration and backlash’, Law & Contemporary Problems, 79, 2016, pp. 141.

Oomen, B.M. ‘A serious case of Strasbourg-bashing? An evaluation of the debates on the legitimacy of the European Court of Human Rights in the Netherlands’. The International Journal of Human Rights, 20(3), 2016, pp. 407-425.

Recommended

Koskenniemi, M., ‘Enchanted by the Tools? An Enlightenment Perspective’, in: Proceedings of the ASIL Annual Meeting, Vol. 113, Cambridge University Press, 2019 pp. 3-19.

Thornhill, C., ‘Constitutionalism and populism: national political integration and global legal integration’, in: International Theory, 2019, pp. 1-32.

Week 10 A New Narrative for Europe: Challenges Ahead

The contemporary European Union faces a range of complex challenges. One of the toughest ones is the backsliding of some of the member states, showing increasing authoritarian tendencies in formally democratic regimes. An equally pressing, and in some ways related, challenge is that of so-called Euroscepticism, which relates to the rather widespread scepticism towards the idea of a suprational European project, but frequently also includes a critique of European regimes of human rights and judicial institutions. It is without doubt that the coincidence of these challenges calls for an imaginative restart of the European project. There are distinct proposals and visions of how the EU is to take on these challenges, depending on which challenge is prioritized.

Readings

Antonina Bakardjieva Engelbrekt, Xavier Groussot (2019), ‘Towards sustainable political and legal integration in Europe: peering into the future’, in: idem. (eds), The Future of Europe: Political and Legal Integration Beyond Brexit, Bloomsbury.

Recommended

Mayer, F.C. (2020), ‘The EU in 2030: An Anticipated Look Back at the 2020s’, German Law Journal, 21(1), pp.63-68.

Readings/Bibliography

Literature

Alemanno, A., 2020. Europe’s Democracy Challenge: Citizen Participation in and Beyond Elections. German Law Journal, 21(1), pp. 35-40.

Bakardjieva Engelbrekt, Antonina and Xavier Groussot (2019), ‘Towards sustainable political and legal integration in Europe: peering into the future’, in: idem. (eds), The Future of Europe: Political and Legal Integration Beyond Brexit, Bloomsbury.

Blokker, P. (2020), ‘Building democracy by legal means? The contestation of human rights and constitutionalism in East-Central Europe’, in: Journal of Modern European History.

Cotterrell, R., 2007. Images of Europe in sociolegal traditions. In: Volkmar Gessner and David Nelken (eds.), European Ways of Law: Towards a European Sociology of Law, Hart, pp. 21-40.

Gessner, Volkmar and David Nelken (2007) (eds.), European Ways of Law: Towards a European Sociology of Law, Hart Publishers.

Gibson, James L. and Gregory A. Caldeira (1996), ‘The Legal Cultures of Europe’, Law & Society Review, Vol. 30, No. 1, pp. 55-86.

Grødeland, Å. B., & Miller, W. L. (2015). European Legal Cultures in Transition. Cambridge University Press

Hertogh, M. (2018), ‘The Myth of Dutch Legal Culture’, in: Nobody's Law: Legal Consciousness and Legal Alienation in Everyday Life. Springer.

Krygier, M. (2019), ‘The Challenge of Institutionalisation: Post-Communist ‘Transitions’, Populism, and the Rule of Law’, European Constitutional Law Review, 15(3), pp. 544-573.

Lenaerts, K., 2019. Limits on Limitations: The Essence of Fundamental Rights in the EU. German Law Journal, 20(6), pp.779-793.

Schluchter, Wolfgang. "The sociology of law as an empirical theory of validity." Journal of Classical Sociology 2.3 (2002): 257-280.

Thornhill, Chris (2012), "The formation of a European constitution: an approach from historical-political sociology." International Journal of Law in Context 8.03 (2012): 354-393.

Thornhill, C. (2017), ‘The Sociology of Constitutions’. Annual Review of Law and Social Science, 13, pp. 493-513.

Recommended

Blokker, P. and C. Thornhill (2017), Sociological Constitutionalism, Cambridge University Press.

Febbrajo, Alberto, and Giancarlo Corsi, eds. Sociology of Constitutions: A Paradoxical Perspective. Routledge, 2016.

Galligan, D. J., & Versteeg, M. (Eds.). (2013). Social and political foundations of Constitutions. Cambridge University Press.

Münch, R. (2008), ‘Constructing a European society by jurisdiction’, European Law Journal, 14(5), pp. 519-541.

Prandini, R. (2013), ‘The Future of Societal Constitutionalism in the Age of Acceleration’, 20:2 Indiana Journal of Global Legal Studies 731-776.

Teaching methods

A combination of lectures, collective debate, and a documentary. It is advisable that students are prepared with regard to the assigned readings before participating in class. Participation is expected and rewarded.

NB. In the context of the Covid-19 crisis, the course is organized in the following manner: part of lectures are taught online, on MS TEAMS (20/16 hours), while a second part is taught in presence (20/16 hours). The number of students allowed in class is determined on the basis of class capacity and following health and safety provisions relevant to the pandemic emergency. In case more students want to attend classes in presence than permitted by the rules, a system of rotation will be organized so as to allow students to participate. Regardless of the health-related conditions and the specific organization of the course, students will be able to follow the lessons of the entire course remotely on MS TEAMS.

Assessment methods

Active participation and discussions 15%

Midterm exam 25%

Final paper 60%

Teaching tools

Useful resources

(sources of information - including videos/documentaries and blogs) that students are recommended to use for a more comprehensive understanding of the subject matter)

Blogs

Verfassungsblog [http://verfassungsblog.de/?lang=en]

Constitution-Making and Constitutional Change [http://constitutional-change.com/]

EUI – Working group Constitutionalism and Politics [https://blogs.eui.eu/constitutionalism-politics-working-group/]

Videos

Crowdsourcing A Constitution in Iceland [https://www.youtube.com/watch?v=CMbfeWDGjtM]

Constitutional Reform in Italy [http://www.dw.com/en/bye-bye-dolce-vita-the-crisis-in-italy/av-36522880]

Italian Reform: Yes or No? [http://video.aljazeera.com/channels/eng/videos/inside-story---will-italians-vote-yes-or-no-for-constitutional-reforms%3F/5234745910001;jsessionid=1C13974318F1201479966FF4F8C56E82]

Deliberative constitution-making [https://www.youtube.com/watch?v=3E6Z_AW3CRk]

Polish Democracy in Danger? [http://www.aljazeera.com/programmes/peopleandpower/2016/04/poles-160406143143740.html]

The Hungarian Illiberal Turn [https://www.youtube.com/watch?v=E81YIq-m8cQ]

Democracy in Europe: Hungary [http://www.debalie.nl/agenda/podium/democracy-in-europe%3A-hungary/e_9782729/p_11768191/]
a triptych on democracy in Hungary, Poland and Turkey [http://www.debalie.nl/agenda/podium/democracy-in-europe%3A-hungary/e_9782729/p_11768191/]

Guardians of the Constitution – The German Bundesverfassungsgericht [https://www.youtube.com/watch?v=NvlsbrElLDA]

How Is Poland Disrupting The European Union? [https://www.youtube.com/watch?v=fUOuGQ5D-Rs]

Organizations/projects

Comparative Constitutions Project [http://comparativeconstitutionsproject.org/]

IDEA International – Constitution Building [http://www.idea.int/our-work/what-we-do/constitution-building]

Office hours

See the website of Paulus Albertus Blokker