Final note
In December 2019, after the end of the lectures and the
submission of the course papers, this website has been
finished. It will stay available for the purpose of deepening and repetition.
All students are welcome to consult me in my office (A.IV.11) to
discuss in detail the
strong and weak points of their course paper. This
step is important to achieve the best possible learning outcome. It may be
helpful to develop your skills and avoid mistakes in the future!
Thank you for your interest and active participation
in the course. Best wishes for your future studies, yours
Prof. Dr. Thomas Schmitz and Mohammad Ibrahim.
Course Description
Comparative studies of
constitutional law broaden the horizon and provide for a better understanding of
the own constitutional law, its particularities and the alternatives, its strong
and weak points and the perspectives of its development. They also facilitate a
critical analysis of the domestic constitutional jurisprudence and doctrine,
since they can be contrasted with those in other countries. Moreover, comparative
studies have often been an important source of inspiration for innovations and
solutions in the own constitutional law.
The present course first presents
the theoretical and historical backgrounds of the constitution as a legal
institution with special regard to contemporary constitutional theory. Then it
discusses the various fundamental constitutional decisions that define the
constitutional identity of the state, as they are anchored in the fundamental
constitutional principles. It will deal mainly with those in the modern free and
democratic constitutional state. A third part is devoted to the fundamental
rights (constitutional rights), with special regard to modern general
fundamental rights doctrine and some selected fundamental rights. Finally, the
different models and experiences of constitutional review, an essential element
of modern constitutionalism, are presented.
The course mainly focuses on the
advanced constitutionalism in Europe and North America. There will be a special
focus on the German constitutional law doctrine, which, due to the abundant
jurisprudence of the German Federal Constitutional Court, has inspired the
development of modern constitutionalism in numerous European and also Asian
countries. The course also deals with constitutionalism in Asia. A special
section will look at fundamental rights in some Asian
countries such as Indonesia, Malaysia, Taiwan and
South Korea. It will delve into the arrangement of fundamental rights in their
constitutions, how they have been interpreted by the courts
and into current problems that
hinder the realisation of the fundamental rights. Another
section will discuss constitutional review in several
countries in Asia, i.e. Indonesia, South Korea, and Japan. Current issues
will be touched on, including models of constitutional review,
Asian values and waves in the development of modern
constitutionalism in Asia.
In order to achieve the credit
points for this course, the participants needed to submit a course paper of
15 to 20 pages.
Downloads (PDF
files)
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Chang, Wen-ChenM Thio, Li-ann;
Tan, Kevin Y. L.; Yeh, Jiunn-rong: Constitutionalism in Asia. Cases and
Materials, 2014 [→ T.S.] |
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Dixon, Rosalind; Ginsburg, Tom
(editors): Comparative Constitutional Law, 2011 |
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Dixon, Rosalind; Ginsburg, Tom
(editors): Comparative Constitutional Law in Asia, 2014 |
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Heringa, Aalt Willem: Constitutions Compared. An Introduction to Comparative Constitutional Law,
4th edition 2016 |
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Jacobsohn, Gary; Schor, Miguel
(editors): Comparative Constitutional Theory, 2018 |
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Rosenfeld, Michael; Sajó,
András (editors): The Oxford Handbook of Comparative Constitutional Law,
2012 |
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Tushnet, Mark: Advanced
Introduction to Comparative Constitutional Law, 2nd edition 2018
[→ T.S.] |
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Masterman, Roger; Schütze,
Robert (editors): The Cambridge Companion to Comparative Constitutional
Law, 2019 [coming soon] |
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Butt, Simon; Lindsey, Tim:
The Constitution of Indonesia. A Contextual Analysis, 2012 [→ law library] |
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Butt, Simon; Lindsey, Tim:
Indonesian Law, 2018 (cf. chapters 1, 2, 5 and 13) |
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Heun, Werner:
The Constitution of Germany. A Contextual Analysis, 2011 [→ T.S.] |
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Robbers, Gerhard:
Constitutional Law in Germany, 2017 |
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Robbers, Gerhard: An
Introduction to German Law, 7th edition 2019 (cf. p. 32 ff.) [→ T.S.] |
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Zekoll, Joachim; Wagner, Gerhad
(editors): Introduction to German Law, 3rd edition 2018 (cf. chapter 2) |
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Boyron, Sophie: The
Constitution of France. A Contextual Analysis, 2012 |
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Paris, Marie-Luce; Foulon,
Julie; Pouillaude, Hugo-Bernard ; Sterck, Julien: Constitutional Law in
France, 2019 |
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Onida, Valerio:
Constitutional Law in Italy, 2nd edition 2019 |
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Ruiz Robledo, Agustín:
Constitutional Law in Spain, 2nd edition 2018 |
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Bovend'Eert, Paul; Kortmann,
Constantijn: Constitutional Law in the Netherlands, 3rd edition 2018 |
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Sedler, Robert
A.: Constitutional Law in the United States, 3rd edition, 2017 |
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Tushnet, Mark: The
Constitution of the United States of America. A Contextual Analysis, 2nd
edition 2015 |
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Webber, Jeremy: The
Constitution of Canada. A Contextual Analysis, 2015 |
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Saunders, Cheryl: The
Constitution of Australia. A Contextual Analysis, 2011 |
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Yeh,
Jiunn-rong: The Constitution of Taiwan. A Contextual Analysis,
2015 |
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Buratti, Andrea: Western
Constitutionalism. History, Institutions, Comparative Law, 2nd
edition 2019 (mainly about constit. history) |
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Chen, Albert H. Y. (editor):
Constitutionalism in Asia in the Early Twenty-First Century, 2016
[→ law library] |
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Chen Albert H. Y.; Harding,
Andrew (editors): Constitutional Courts in Asia. A Comparative
Perspective, 2018 |
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Delaney, Erin F.; Dixon, Rosalind
(editors): Comparative Judicial Review, 2018 |
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Ginsborg, Tom; Rosen, Mark D.;
Vanberg, Georg (editors): Constitutions in Times of Financial Crisis,
2019 |
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Ginsburg, Tom; Simpser, Alberto:
Constitutions in Authoritarian Regimes, 2013 |
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Ginsburg, Tom (editor):
Comparative Constitutional Design, 2012
[→
law library] |
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Glaser,
Henning (editor): Constitutional Jurisrpudence.
Function, Impact and Challenges, 2016 |
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Grote, Rainer; Röder, Tilmann J.:
Constitutionalism, Human Rights, and Islam after the Arab Spring, 2016 |
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Hirschl, Ran: Comparative
Matters. The Renaissance of Comparative Constitutional Law, 2014 |
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Irving, Helen (editor):
Constitutions and Gender, 2019 |
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Neo, Jaclyn
L.; Son, Bui Ngoc (editors): Pluralist Constitutions in Southeast
Asia, 2019 |
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Pünder, Hermann; Waldhoff,
Christian (editors):
Debates in German Public Law, 2014 |
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Rogowski, Ralf; Gawron, Thomas
(editors): Constitutional Courts in Comparison: The US Supreme Court and
the German Federal Constitutional Court, 2016 |
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Sperti, Angioletta:
Constitutional Courts, Gay Rights and Sexual Orientation Equality, 2019 |
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Visser, Maartje de:
Constitutional Review in Europe. A Comparative Analysis, 2013 |
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Bogdany, Armin von; Huber,
Peter M. et al. (editors): Handbuch Ius Publicum Europaeum [Handbook of
European Public Law], vol. I: Grundlagen und Grundzüge staatlichen
Verfassungsrechts [Foundations and Basics of State Constitutional law],
2007; vol. II: Offene Staatlichkeit - Wissenschaft vom Verfassungsrecht
[Open Statehood - Constitutional Law Science], 2008; vol. VI:
Verfassungsgerichtsbarkeit in Europa: Institutionen [Constiutional
Jurisdiction in Europe: Institutions], 2016 |
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Grote,
Rainer; Lachenmann, Frauke; Wolfrum, Rüdiger (editors): Max Planck
Encyclopedia of Comparative Constitutional Law, 2017 ff. (online
encyclopedia) |
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Merten, Detlef; Papier,
Hans-Jürgen et al. (editors): Handbuch der Grundrechte in Deutschland
und Europa [Handbook of Fundamental Rights in Germany and Europe], vol. I -
X, 2004 - 2018 |
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Kortmann, Constantijn; Fleuren,
Joseph; Voermans, Wim (editors): Constitutional Law of 10 EU Member
States.The 2004 Enlargement, 2006 [→ T.S.] |
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Prakke, Lucas; Kortmann,
Constantijn (editors): Constitutional Law of 15 EU Member States, 2004
[→ T.S.] |
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Robbers, Gerhard (editor):
Encyclopaedia of World Constitutions, 2006 |
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Tushnet, Mark; Fleiner, Thomas;
Saunders, Cheryl (editors): Routledge Handbook of Constitutional Law,
2015 |
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AJCCL: Africa Journal of
Comparative Constitutional Law, since 2016 |
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ECLR: European Constitutional
Law Review, since 2005 |
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ERPL/REDP: European Review of
Public Law / Revue Européene de Droit Public, since 1989 |
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GLJ: German Law Journal, since 2000 |
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HJRL: Hague Journal on the Rule of Law, since 2009 |
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GlobCon: Global Constitutionalism. Human Rights, Democracy and the
Rule of Law, since 2012 |
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ICL JournL: Vienna Journal on
International Constitutional Law, since 2007 |
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I*CON:
International Journal of Constitutional Law, since 2003 |
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IJHRCS: International Journal
of Human Rights and Constitutional Studies, since 2013 |
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Constitutions:
Constitution of the Republic of Indonesia of 1945 in English (html/pdf)
and
Indonesian,
Basic Law for the Federal Republic of Germany of 1949,
American Constitution of 1787,
French Constitution of 1958,
constitutions of EU member states,
other constitutions (Constitute/ICL)
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Constitutional courts:
Mahkama
Konstitusi (Indonesia),
Bundesverfassungsgericht (Germany),
Conseil Constitutionnel (France),
Corte Costituzionale (Italy),
Tribunal Constitucional (Spain),
Constitutional
Court of South Africa,
Constitutional Court of Korea,
others; ordinary courts with constitutional jurisdiction:
U.S. Supreme
Court, High
Court of Australia
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Associations:
IACL
(International Association of Constitutional Law),
ICON*S (International
Society of Public Law),
AACS (Association
for Asian Constitutional Studies),
SIPE (Societas
Iuris Publici Europaei, association of European constitutionalists),
EPLO (European
Public Law Organisation),
ANCL (African
Network of Constitutional Lawyers)
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Research institutions:
Max Planck Institute for Comparative Public Law and
International Law (Heidelberg, with
huge
library on public law in the world), Institute
for European Constitutional Law (Trier),
German-Southeast
Asian Center of Excellence for Public Policy and Good Governance
(Bangkok),
Center for Constitutional Studies and Democratic Development
(Bologna),
Center for Comparative Constitutional Studies (Melbourne)
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Antonia Baragga, Challenges in Comparative Constitutional Law
Studies: Between Globalization and Constitutional Tradition, Law and
Method 10.2017;
Philipp Dann, The Global South in Comparative Constitutional
Law, Völkerrechtsblog 14.07.2017,
Ran Hirschl, The Rise of Comparative Constitutional Law:
Thoughts on Substance and Methods, Indian Journal of Constitutional Law
2018, p. 11 ff. |
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concerning § 2
VI:
U.S. Supreme Court, Marbury v. Madison,
1803 (primacy of the constitution and constitutional review);
Jutta Limbach, The Concept of the Supremacy of the Constitution,
Modern Law Review 64 (2001), no. 1, p. 1 ff.
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concerning § 2
VIII:
Christian Bumke; Andreas Voßkuhle, German Constitutional Law,
2019, no. 161 ff., on the interpretation of laws in conformity with the
constitution according to the Federal Constitutional Court (cf. BVerfGE
86, 288, 320; 122, 39, 60)
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concerning § 2
IX:
Gàbor Halmai, Constitutional Interpretation in a Globalized
World, Journal of Parliamentary and Political Law 2012, 271 ff.
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concerning § 3
I:
Instrument of Government (England 1653),
Virginia Bill of Rights (1776),
Déclaration des droits de l'homme et du citoyen (France 1789;
French/Engl.),
Treaty Establishing a Constitution for Europe (2004)
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concerning § 4
VI:
Dieter Grimm, Constituent Power and Limits of Constitutional
Amendments, Nomos 2-2016;
Yaniv Roznai, Unconstitutional Constitutional Amendments: A
Study of the Nature and Limits of Constitutional Amendment Powers,
doctoral thesis London 2014
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concerning § 5
III:
Wilhelm Hofmeister; Edmund Tayo (editors), Federalism and
Decentralisation. Perceptions for Political and Institutional Reforms,
2016;
Elliot Blumer, Federalism, 2017 (published by IDEA);
Parliament of Australia, Overview of Australian Federalism;
IACFS (International
Association of Centers for Federal Studies)
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concerning § 6
I:
Venice Commission (European Commission for Democracy through Law,
expert commission of the Council of Europe)
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concerning § 6
II:
Venice Commission (editor), The principle of respect for human
dignity, Doc. no. CDL-STD(1998)026, 1998;
Paolo Becchi; Klaus Mathis (editors), Handbook of Human Dignity
in Europe, 2019 |
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concerning § 6
III: See the links
on the principle of democracy from the course Electoral Law
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concerning § 6
IV:
Venice Commission, Rule of Law Checklist, 2016;
Gertrude Lübbe-Wolff, The Principle of Proportionality in the
Case-Law of the German Federal Constitutional Court, HRLJ 34 (2014), 12;
Luka Anđelković, The elements of Proportionality as a Principle
of Human Rights Limitations, Law and Politics 15 (2017), no. 3, 235;
Thomas Schmitz, Observations on the Role of the Rule of Law in
Times of Globalisation and Populism, IC-GLOW 2018
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concerning § 7
III:
Fu Hualing; Jason Buhi, Diverging Trends in the Socialist
Constitutionalism of the People's Republic of China and Socialist
Republic of Vietnam, University of Hong Kong Faculty of Law Research
Paper No. 2017/015 |
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concerning § 7
IV:
Moamen Gouda, Islamic Constitutionalism and Rule of Law: A
Constitutional Economics perspective, Constitutional Political Economy 24
(2013), p. 57 ff. |
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concerning § 8
II:
art. 1(3) German Basic Law (fundamental rights as directly
applicable law - today a standard of constitutionalism);
Dieter Grimm, The role of fundamental rights after sixty-five
years of constitutional jurisprudence in Germany, I•CON 13 (2015), p. 9
ff.
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concerning § 8
III: The
Charter of Fundamental Rights of the European Union (the world's
most modern catalogue of fundamental rights, with the most up-to-date
categorisation of rights)
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concerning § 8
IV and § 10:
Lüth Decision of the German Federal Constitutional Court (BVerfGE 7,
198, English translation - fundamental rights as objective system of
constitutional values) |
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concerning §
10:
Oliver Jouanjan, Freedom of Expression in the Federal Republic
of Germany, Indiana Law Journal 84 (2009), no. 3
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concerning § 10
IV:
Winfried Brugger, The Treatment of Hate Speech in German
Constitutional Law, German Law Journal 4 (2003), no. 1;
decisions of the German Federal Constitutional Court:
BVerfGE 93, 266 ("soldiers are murderers", English translation),
BVerfGE 90, 241
(denial of holocaust, English translation),
BVerfGE 124, 300 (criminal prosecution of approval of the National
Socialist regime of terror, English translation)
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