Contemporary Issues in Law: Law and Human Rights in Central Europe Syllabus Spring 2011 Zdeněk Kühn zdenku@seznam.cz Charles University Law School, Office 239, Namesti Curieovych 7, Praha 1 Office hours Monday 10-11 AM Course description: This course explores the development of the rule of law and human rights issues in post-communist Central Europe. We will also refer to transitional systems outside the post-communist region. Although dealing with Central European region, we will often talk about American situation as well. First, we will face a short introduction into the history of the Central European region and its culture of human rights, and try to delineate this region. Next, we will examine the historical, national and international context of making constitutionalism and the rule of law in Central Europe. We will try to understand what the term human rights actually means. We will look at the debates that occurred when emerging democracies dealt with the former communist regimes. In several case studies, we will explain some basic attitudes towards the former communist regimes, its apparatchiks, its agents, and collaborators (lustration laws and dealing with the communist crimes). We will compare these approaches with those found elsewhere (South Africa, Latin America). Furthermore, we will examine contemporary human rights debates surrounding abortion, freedom of speech, social rights, the relation between religion and the state, the discrimination against minorities, gay rights, gender discrimination, affirmative action etc. We will also analyze the Western legal transplants in Central Europe and the post-communist application of basic rights. Finally, we will deal with the European Union and the legal dimension of the European Enlargement of 2004. Classes are held on Mondays between 4:30 PM and 7.20 PM. Grading policy Class participation/attendance: 25% Paper or other assignment: 30% Mid-term: 25 % Final: 20% Schedule of classes Week 1 24 January - Overview of course The Human Rights Development and Human Rights Traditions in Central Europe Larry Wolff, Inventing Eastern Europe, Stanford 1994 (excerpts). Week 2 31 January Communist Law: Theory and Practice Vladimir I. Lenin, State and Revolution. http://www.marxists.org (excerpts)
Communist Law: 1970 s and 1980 s in Central Europe Inga S. Markovits, Law or Order Constitutionalism and Legality in Eastern Europe. 34 Stanford L. Rev. 513 (1981-1982). Excerpts. Week 3 7 February The 1989 Revolutions, Their Constitutional Meaning Vaclav Havel, The Power of Powerless (1978), excerpts, www.vaclavhavel.cz Jiří Přibáň, Legitimacy and Legality after the Velvet Revolution. In Přibáň J. and J. Young (eds), The Rule of Law in Central Europe. Aldershot 1999, pp. 29-55. Optional: M. Bankowicz, Czechoslovakia - From Masaryk to Havel. In: S. Berglund and J. A. Dellenbrant (eds.). The New Democracies in Eastern Europe. Aldershot 1991, p. 136-160 The Concept of Human Rights in the Post-Communist Legal Systems and the US The Czech and Polish constitutions (excerpts). Pawel Spiewak, The Battle for a Constitution. East European Constitutional Review, Number 2 & 3, 1997 (excerpts). Roper v. Simmons 543 U.S. 551 (US Supreme Court 2005) juvenile death penalty case Week 4 14 February Watching Movie Lives of Others Week 5 21 February Drafting New Constitutions after the Fall of Communism Wojciech Sadurski, Enduring and Empowering: The Bill of Rights in the Third Millennium: Postcommunist Charters of Rights in Europe and the U.S. Bill of Rights, 65 Law & Contemp. Prob. 223 (2002) (excerpts) Pawel Spiewak. The Battle for a Constitution. East European Constitutional Review, Number 2 & 3, 1997 (excerpts) The Hungarian and Czech constitutions (excerpts) US Bill of Rights Lustration Wojciech Sadurski, Rights before Courts, Springer 2005, 223-248 Roman Boed, An Evaluation of the Legality and Efficacy of Lustration as a Tool of Transitional Justice, 37 Colum. J. Transnat'l L. 357 (1999) Week 6 28 February Human Rights and the Role of Religion in the Legal System. The Case of Abortion Preamble to the Polish Constitution S. P. Ramet, Whose Democracy? Nationalism, Religion, and the Doctrine of Collective Rights in Post-1989 Eastern Europe. Rowman & Littlefield Publishers, Inc., New York, Oxford 1997, 97-102, 109-110 Wojciech Sadurski, Rights before Courts, Springer 2005, 101-103, 134-135, 135-143
Separation of Powers. Presidential vs. Parliamentarian Systems Leszek Lech Garlicki, The Presidency in the New Polish Constitution. East European Constitutional Review, Number 2 & 3, 1997. Matthew S. Shugart, Of Presidents and Parliaments. East European Constitutional Review, Winter 1993, p.30-32. Optional Readings: Bruce Ackerman, The New Separation Of Powers. Harvard Law Review, January, 2000, vol. 113, 633 ff. (excerpts) Week 7 7 March Midterm Week 8 14 March Free Speech: Comparing the United States and Europe Brandenburg v. Ohio 395 U.S. 444 (1969) Hate Speech in Germany and Central Europe The Judiciary Otto Ulč, The Judge in a Communist State. A View from Within. Ohio University Press, Columbus. 1972 (excerpts: 61-69). Agatha Fijalkowski, The Judiciary s Struggle towards the Rule of Law in Poland. In Priban, J. and J. Young (editors). The Rule of Law in Central Europe. 1999. Aldershot, Dartmouth Publishers, p.242-256. Week 9 Spring Break no classes Week 10 28 March Communist Crimes and Punishment Shootings on the Berlin Wall Case Wojciech Sadurski, Rights before Courts, Springer 2005, 258-262 Dealing with the Past: Analogous Cases and Varying Approaches Spanish Judge Sends Argentine to Prison on Genocide Charge (NYTimes, June 30, 2003). Alexis Holyweek Sarei, et al. vs. Rio Tinto Plc and Rio Tinto Ltd. (the island of Bougainville case) L. Huyse, Justice after Transition: On the Choices Successor Elites Make in Dealing with the Past, Law and Social Inquiry, vol. 20, 51 (1995) Week 11 4 April Constitutional Courts and Constitutional Review Zdenek Kühn, The Judicialization of European Politics, in: Erik Jones, Paul Heywood, Uli Sedelmeier, Martin Rhodes (eds.). Development in European Politics, Macmillan/Palgrave 2006 Optional: Wojciech Sadurski, Constitutional Justice, East and West: Introduction. In: Constitutional Justice, East and West. (Wojciech Sadurski ed.). Kluwer Law International 2002
Legal Transformation of Social Rights and the Social Welfare State Cass Sunstein. Against Positive Rights. East European Constitutional Review, Winter 1993, p.35-38 Bruce Ackerman, The New Separation of Powers. Harvard Law Review, January, 2000, vol. 113, 633 ff. (excerpts) Wojciech Sadurski, Rights before Courts, Springer 2005, 171-194 Week 12 11 April Gender Equality in a Post-Communist Situation. Sex Harassment Speeches from the Czech Senate Ulla Grapard, Theoretical issues of gender in the transition from socialist regimes, 31 Journal of Economic Issues 665 (1997) Gay Rights William N. Eskridge, Jr., Comparative Law and the Same-Sex Marriage Debate: A Step-by- Step Approach Toward State Recognition, 31 McGeorge L. Rev. 641 (2000) John M. Finnis, Law, Morality, and "Sexual Orientation" 69 Notre Dame L. Rev. 1049 (1994) Schalk and Kopf vs. Austria (ECHR, 24 June 2010) Week 13 18 April Affirmative Action Case Study Ronald Dworkin: The Court and the University. NY Rev. Books, May 15, 2003 University of Michigan Law School Case (2003) Eric Jenne, The Roma of Central and Eastern Europe: Constructing a Stateless Nation, In: Stein J. P. (ed.), The Politics of National Minority Participation in Post-Communist Europe. State Building, Democracy and Ethnic Mobilization. East West Institute 2000, 189-212 Teitel Ruti G., Transitional Justice. Oxford University Press, Oxford 2000, 141-142 (affirmative action as a redress of past wrongs). Optional Reading: Cooper Belinda, 'We Have No Martin Luther King.' Eastern Europe's Roma Minority. World Policy Journal Winter 2001/2002, Vol. 18, Issue 4. The European Union and its Constitutional Meaning (two hours) The European Constitutional Treaty (2004) excerpts Armin von Bogdandy, The European constitution and European identity: Text and subtext of the Treaty establishing a Constitution for Europe, International Journal of Constitutional Law, June 2005, vol. 3, issue 2, p. 295 ff. Week 14 25 April - National Holiday No classes Week 15 2 May Freedom of religion in Europe Leyla Sahin v. Turkey (ECHR, 10 November 2005) Conclusions
Week 16 --Exam week 9 May In class exam Papers due 9 May