Class code

SOC-UA9413001

Instructor Details

Zdenek Kühn [email protected] Charles University Law School Namesti Curieovych 7 116 40 PRAHA 1 rd

Office 242 (3 floor) Office hours Monday 10 AM – 12 PM Class Details

Contemporary Issues in Law: Law and Human Rights in Central Europe – SPRING 2015 Monday, 4.30 PM – 7.20 PM Location to be confirmed.

Prerequisites

None

Class 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 human rights actually mean. We will face the debates that occurred when emerging democracies dealt with the former communist regimes. On several case studies, we will explain several 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. Lectures combined with class discussion, one field trip to the Brno high court will be organized as well.

Desired Outcomes

Students shall get basic orientation in the problems of human rights in post-communist Europe, shall get basic info about the legal and constitutional systems in the region, shall become more familiar with the region`s past problems vis-à-vis human rights.

Assessment Components

Class participation 15 % Midterm presentation 25 % (students will join two teams proposing to ban a far extreme political party or defending the party, the exam is made as moot court) – up to 2 hours in total, each presentation approx. 30 minutes Final in class essay 30 % (80 minutes, open book, choice of five topics) Final research paper (12 pages, Times New Roman, 1.5 paragraph, including footnotes plus a list of literature) – students must consult the topic with a professor before starting to write it Failure to submit or fulfill any required course component results in failure of the class.

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Assessment Expectations

Grade A: a student will score well on all exams, will be ready for classes, very good analytical skills Grade B: some parts of the exam will be good, some weaker (falling short of highest level); students able to answer my questions during classes Grade C: all papers will be weaker, but still satisfactory; students mostly passive during classes Grade D: papers weak but still passable, students often unprepared for the classes Grade F: students will deliver unsatisfactory papers, confused writings etc.

Grade conversion

A=94-100 A-=90-93 B+=87-89 B=84-86 B-=80-83 C+=77-79 C=74-76 C-=70-73 D+=67-69 D=65-66 F=below 65 Absences only for medical reasons and for religious observance will be excused. To obtain an excused absence, you are obliged to supply either a doctor’s note or corroboration of your illness by a member of the housing staff (either an RA or a Building Manager). To be excused for religious observance, you must contact the instructor and the Associate Director via e-mail one week in advance of the holiday. Your absence is excused for the holiday only and does not include days of travel associated with the holiday. Unexcused absences will be penalized with a two percent deduction from your final course grade for every week of classes missed.

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Plagiarism Policy

According to the Liberal Studies Program Student Handbook, plagiarism is defined as follows: Plagiarism is presenting someone else’s work as though it were one’s own. More specifically plagiarism is to present as one’s own a sequence of words quoted without quotation marks from another writer, a paraphrased passage from another writer’s work; facts or ideas gathered, organized and reported by someone else, orally and/or in writing. Since plagiarism is a matter of fact, not of the student’s intention, it is crucial that acknowledgment of the sources be accurate and complete. Even where there is no conscious intention to deceive, the failure to make appropriate acknowledgment constitutes plagiarism. The College of Arts and Science’s Academic Handbook defines plagiarism similarly and also specifies the following: “presenting an oral report drawn without attribution from other sources (oral or written), writing a paragraph which, despite being in different words, expresses someone else’s idea without a reference to the source of the idea, or submitting essentially the same paper in two different courses (unless both teachers have given their permission in advance). Receiving help on a take-home examination or quiz is also cheating – and so is giving that help – unless expressly permitted by the teacher (as in collaborative projects). While all this looks like a lot to remember, all you need to do is give credit where it is due, take credit only for original ideas, and ask your teacher or advisor when in doubt.” “Penalties for plagiarism range from failure for a paper, failure for the course or dismissal from the university.” (Liberal Studies Program Student Handbook)

Required Text(s)

Course pack found in the NYUP library

Supplemental Texts(s) none (not required to purchase as copies are in NYU-P Library) Internet Research Guidelines

none

Additional Required Equipment

none

Session 1 Monday, Feb 2

Overview of the course

Session 2 Monday, Feb 9

The Human Rights Development and Human Rights Traditions in Central Europe Larry Wolff, Inventing Eastern Europe, Stanford 1994 (excerpts) 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

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Session 3 Monday, Feb 16

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 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

Session 4 Monday, Feb 23

Watching movie Lives of Others

Session 5 Monday, March 2

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) Communist Crimes and Punishment Shootings on the Berlin Wall Case Wojciech Sadurski, Rights before Courts, Springer 2005, 258-262

Session 6 Monday, March 9

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) 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

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Session 7 Monday, March 16

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 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

Session 8 Monday, March 23

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) 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

Session 9 Monday, March 30

Midterm – mootcourt based on the fact scenario given to the students

Spring Break April 6-10

No classes

Session 10 Monday, April 13

Free Speech: Comparing the United States and Europe Brandenburg v. Ohio 395 U.S. 444 (1969) Hate Speech in Germany and Central Europe 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

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Session 11 Monday, April 20

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)

Session 12 Monday, April 27

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 Jonathan 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.

Session 13 Monday, May 4

Field trip to Brno high court

Session 14 Monday, May 11 (last day of classes)

Freedom of religion in Europe Leyla Şahin v. Turkey (ECHR, 10 November 2005) Conclusions

Session 15 Monday, May 18 Final exam

Final exam (in-class essay, open book, choice of one of five topics offered)

Classroom Etiquette

none

Required Co-curricular Activities

none

Suggested Cocurricular Activities

none

Final paper due the same day

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