DISCIPLINA: Fundamental Rights and Constitutional Justice - E
Docentes:
Gonçalo Manoel de Vilhena de Almeida Ribeiro
Ravi Fernando Pina Afonso Pereira

Sítio da Disciplina: http://sca.lisboa.ucp.pt/e-sca/moodle.aspx?CdDis=14C432620174

Programa:
TRANSNATIONAL LAW CURRICULUM
FUNDAMENTAL RIGHTS AND CONSTITUTIONAL JUSTICE
2017/18 2nd Semester 6 ECTS
Instructors:
Prof. Gonçalo de Almeida Ribeiro
Dr. Ravi Afonso Pereira



A survey course on fundamental rights and their judicial protection. The focus is not on the study of particular regimes and systems but on the structural and substantive features shared by them and on the historical and comparative study of how those features came to be in the constitutional traditions of the United States and Europe. However, the course is not primarily centered on the philosophy or the history of fundamental rights. The subject is the general theory of fundamental rights, comprising their theoretical foundations; the general doctrine of their structure, application, and effects; the doctrinal construction of special rights or principles; and the various systems, standards, and levels of judicial enforcement. The aim is to provide the students with an understanding of the subject and with the technical tools indispensable to legal reasoning in this domain.
The course will draw on material from various jurisdictions, including landmark case law of the United States Supreme Court, the German Federal Constitutional Court, and the European Court of Human Rights. All the material and classes will be in English and the students enrolled are expected to be fluent speakers and competent writers. Students are required to read carefully the case assigned to each week before coming to class. Coming to class unprepared is folly as most of it will take the form of a Socratic dialogue that builds on the case assigned to the week. Reading the other material before class is highly recommended, particularly the pieces referenced in bold, which the instructors consider the minimum for passing the course. Grading will be based on class participation and a final written exam, with the possibility of an additional oral exam, in accordance with the regulations of the Law School.

All the material - case law and scholarly pieces - will be posted on moodle before the week to which it is assigned.


INTRODUCTORY SESSION [Feb 15]


I. THEORETICAL FOUNDATIONS

WEEK 1: HUMAN DIGNITY AND PUBLIC REASON [Feb 22 & 23]
Reading Material:
Lawrence v. Texas, 539 U.S. 558 (2003).
Rawls, The Idea of Public Reason Revisited.
G.A.R., A Pluralist Case for the Harm Principle.
Griffin, On Human Rights, Ch. 2.

WEEK 2: RIGHTS, COURTS, AND DEMOCRACY I: HISTORY [Mar 1 & 2]
Reading Material:
Lochner v. New York, 198 U.S. 45 (1905).
Comella, Constitutional Courts and Democratic Values, Chs. 1. & 2.
Ferejohn/Pasquino, Constitutional Adjudication: Lessons from Europe.
Corwin, The ?Higher Law? Background of American Constitutional Law.

WEEK 3: RIGHTS, COURTS, AND DEMOCRACY II: THEORY [Mar 8 & 9]
Reading Material:
S.A.S. v. France, ECHR 1 July 2014.
Kumm, The Idea of Socratic Contestation and the Right to Justification.
Habermas, Between Facts and Norms, Ch. 6.
Waldron, The Core of the Case Against Judicial Review.


II. GENERAL DOCTRINE

WEEK 4: THE STRUCTURE OF FUNDAMENTAL RIGHTS [Mar 15 & 16]
Reading Material:
BVerfGE [Reiten im Walde] 80, 137 (1989).
Alexy, A Theory of Constitutional Rights, Sections 3-I, 4-II, & 4-III.
Dworkin, Taking Rights Seriously, Sections I-3 & II-5.

WEEK 5: PROPORTIONALITY ANALYSIS [Mar 22 & 23]
Reading Material:
Lustig-Prean & Beckett v. The United Kingdom, ECHR 27 Sep 1999.
Klatt/Meister, The Constitutional Structure of Proportionality, Chs. 1 & 2.
Alexy, A Theory of Constitutional Rights, Postscript.

WEEK 6: VERTICAL AND HORIZONTAL EFFECT [Apr 5 & 6)
Reading Material:
BVerfGE [Lüth] 7, 198 (1958).
G.A.R., The Effects of Fundamental Rights in Private Disputes.
Kumm, Who?s Afraid of the Total Constitution?
Alexy, A Theory of Constitutional Rights, Section 10-II.


III. SPECIAL DOCTRINES

WEEK 7: THE PRINCIPLE OF EQUALITY [Apr 12 & 13]
Reading Material:
BVerfGE [Luftverkehrsteuer] 137, 350 (2014).
Alexy, A Theory of Fundamental Rights, Ch. 8.
Westen, The Empty Idea of Equality.

WEEK 8: CERTAINTY AND EXPECTATIONS [Apr 19 & 20]
Reading Material:
Stretch v. United Kingdom, ECHR 24 Jun 2003.
Raz, The Rule of Law and Its Virtue.
Luhmann, Law as a Social System, Ch. 3.
Popelier, Legitimate Expectations and the Law-Maker in the Case Law of the European Court of Human Rights.

WEEK 9: FREEDOM OF EXPRESSION [Apr 26 & 27]
Reading Material:
Almeida Fernandes v. Portugal, ECHR 17 Jan 2017.
Mill, On Liberty, Book II.
Dworkin, A Matter of Principle, Ch. 17.


IV. JUDICIAL PROTECTION

WEEK 10: SYSTEMS OF JUDICIAL REVIEW [May 3 & 4]
Reading Material:
Marbury v. Madison, 5 U.S. 137 (1804).
Sweet, Why Europe Rejected American Judicial Review.
Schmitt, The Guardian of the Constitution.
Kelsen, Who Should Be the Guardian of the Constitution?


WEEK 11: STANDARDS OF JUDICIAL REVIEW [May 10 & 11]
Reading Material:
United States v. Carolene Products Co., 304 U.S. 144 (1938).
Ely, Democracy and Distrust, Ch. 6.
Alexy, Balancing, Constitutional Review, and Representation.
G.A.R., Is Judicial Restraint a Matter of Bright Lines or of Democratic Deference?

WEEK 12: LEVELS OF JUDICIAL REVIEW [May 17 & 18]
Reading Material:
BVerfGE [Identitätskontrolle I] 2 BvR 2735/14 (2015)
Bogdandy/Schill, Overcoming Absolute Primacy.
Maduro, Three Claims of Constitutional Pluralism.
Kumm, Constituent Power, Cosmopolitan Constitutionalism, and Post-Positivist Law.