Topics

1. The Concept of Europe • The Historical Emergence of Eastern Europe • The Emergence of Central and Eastern European Legal Tradition • The Issue of Human Rights in the Region

2. Marxism and Law • Positivism or Anti-Positivism? • The Role of Judges and Law in Marxist Theory

3. The Practice in the 1950’s: The Stalinist Judicial Culture: General Features, its Central European Variations • The Emergence and the Decline of Communist Anti-Positivism • Emancipation Thesis alas Some Positive Features of the Communist Legal Culture

4. The Practice in the 1970’s and 1980’s: Communist Post-Stalinist Legal Culture in Central Europe • Making a Post-Stalinist Ultra-Positivism

5. The 1990s and the Early 2000s: The Transformation of Post-Communist Legal Systems • Dealing with the Communist Crimes • Lustration • Judiciary

6. Constitutional Courts of Central Europe • The Transformation of the Legal System via Constitutional Adjudication • The Emergence of New Constitutionalism

7. – 8. Democratic Backsliding • The Fall of New Constitutionalism • The Rise of New Authoritarianism • Poland and Hungary • The Power of the EU • European Court of Human Rights and Democratic Backsliding

9-10. Constitutional Systems of the New EU Countries: Bulgaria, Romania, Croatia (Lectures by Professor Hofmann)

Course Goals / Learning Outcomes:

Upon completion of this course, students will be able to:

● get basic orientation in the legal systems of Central Europe and the EU

● get basic information about the legal and constitutional systems in the region and will be able to understand the problems liberal democracies face in Central Europe

● will become familiar with the region’s past and current problems vis-à-vis law and human rights

Reading is based on the coursepack, including:

Topics 1-6:

Mirjan DAMAŠKA: The Faces of Justice and State Authority. A Comparative Approach to the Legal Process. New Haven, London, Yale University Press, 1986.
Agata FIJALKOWSKI: The Judiciary’s Struggle towards the Rule of Law in Poland, in: The Rule of Law in Central Europe (Jiří Přibáň, James Young eds.), Dartmouth: Ashgate, 1999
John HAZARD: Communists and their Law. A Search for the Common Core of the Legal Systems of the Marxian Socialist States. The University of Chicago Press, Chicago, London, 1969
Martijn W. HESSELINK: The New European Legal Culture, Kluwer-Deventer, 2001
Zdeněk KÜHN: Worlds Apart. American Journal of Comparative Law, 2004
LENIN V. I.: State and Revolution. http://www.marxists.org (excerpts)
Wojciech SADURSKI: Marxism and legal positivism, in: Essays In Legal Theory (Galligan D. J., ed.), Melbourne University Press, Victoria, 1984
Larry WOLFF: Inventing Eastern Europe, Stanford, 1994

Topics 7-10:

Stanimir ALEXANDROV: Paving the way for Bulgaria’s accession to the European Union. - Fordham international law journal, 21 (1998) 3, pp. 587-601
Davor BOŽINOVIČ: Croatia and the European Union, in: Review of international affairs, 54 (2003) 1111, pp. 25-31
Dinesh D. BANANI: Reforming history: Turkey’s legal regime and its potential accession to the European Union, in: Boston College international and comparative law review, 26 (2003) 1, pp. 113-127
The selected case law and statutes