2439.16 - Modern constitutions and constitution making

Course number
Modern constitutions and constitution making
Bachelor degree or equivalent with adequate component of law
The principal purpose of the course is to give the students a broad introduction to constitutional theory, modern constitutions, constitutionalism, constitution making, and the theory of constitutional interpretation and adjudication. The course will also focus on the theory and practice of constitutions and constitutionalism in the context of sub-state polities or sub-units in federated structures, the Faroese constitutional project included.
The course begins with a critical discussion of foundational questions, such as: What is a constitution, written constitutions and constitutionalism, and the role of constitutions. In relation to the role of constitutions, and what a constitution is, the course discusses different ideas and conceptions of constitutions, as constitutions as charters, the idea of political constitutionalism, the traditional higher law idea of constitutions, and the theory of constitutions as precommittment devices. The course also discusses the mechanisms behind constitution making processes and possible principles of constitutional design. In this relation, certain constitution making strategies are illustrated, as the incompletely theorized approach, and the strategy to lover decision and error costs by deferrring certain constitutional issues to later decisonmakers. The course also covers the topic of the relation between the constitution de jure and the constitution de facto, and the difference between constitutional meaning (interpretation) and constitutional doctrine (construction). Connected to the former is a discussion of the interpretability of constitution. Related to the latter the course will discuss different sub-state interpretive approaches, representing varying levels of autonomy vis á vis the larger metropolitan legal system. The parameters for a democratic constitution and a democratic constitution making process also enters the discussion. Special attention is towards the end given to the Faroese constitutional process from about 2000 and onwards.
Learning and teaching approaches
40 hours, of which 10 are related to 4 multiple choice tests, and 30 are tightly scheduled as traditional teaching with presentations from teachers and possibly student exercises.
Learning outcomes
The students shall among other things: -Demonstrate a thorough understanding of the theory and practice of constitutionalism, constitution making and constitutional design. - Be able to explain different conceptions of the idea of a constitution. - Demonstrate an understanding of the contested relationship between the concept of a sub-state constitution and a sub-state constitutional culture. - Be able to reflect on the hierarchical tensions inherent in the relation between a sub-state constitution and the metropolitan state constitution - Be able to explain different interpretive approaches relevant for the relation between the sub-constitution and the constitution of the metropolitan state. - Understand the difference between interpretive truth and interpretive authority. - Understand the difference between interpretation and construction. - Be able to assess the preconditions that are likely to render a constitution making process successful. - Be able to explain different patterns among sub-state constitutions and reflect on possible normative lessons inferred from these. - To be able to see the current Faroese constitutional process in a theoretical context, and be able to put forth a prospective analysis.
Assessment method
Mixed oral and written exam. Four multiple choice exams shall count for 40% of the mark. Oral exam counts for 60% of the mark. Preparing for the oral exam the student will get a list of the possible questions in advance and can then marshal the materials (readings, lectures and discussions) together in such a way as to be ready to respond to questions and to engage in further discussion with the examiners. The exam questions will be thematic, having to do with various theoretical perspectives on constitutions and constitutionalism. External examiner (together with teachers)
Marking scale
Bárður Larsen & Mikael M. Karlsson: Materials – available on the FirstClass network. About 670 pages.
Bárður Larsen