Core Subject: Important Challenges in European Governance

Course content

The so-called ‘constitutionalization’ of Europe continues to both transform and challenge the Union and the member states. Constitutionalisazion is defined as the process which after the 2WW established the EU as an aspiring constitutional order with a strong supranational court and EU law primacy over national law. Due to the atrocities committed by the nazi-regime, most European states also nationally adopted a new version of democracy where courts play a much stronger role than previously due to the need to protect the minority from the potential tyranny of the majority. This made ‘judicial review’ a ‘natural’ part of modern democracy both at the EU and the national level. Not all member states agreed to this model however. In particular the Nordic countries and the UK continued to see democracy as primarily based on elections and forming of majorities with a very weak role for courts. In recent years, democratic backsliding in some Central and Eastern European states, have also been based on a ‘revolt’ against constitutionalism. The course will address these diverse developments and look into what consequences it has had for the Europeanization process. A specific focus in the second part of the seminar (after the fall break) will be to focus more on democratic backsliding. We will thus take the theoretical perspectives developed in the first part and apply it to how the constitutionalization process has played into the rule of law crisis from the 2010s onwards. Democratic backsliding in particular in Poland and Hungary will take centre stage but we will also draw on new literature that sees backsliding as an almost ‘legitimate’ or at least understandable reaction to the ongoing constitutionalization of European politics. Democratic backsliding in European Union (EU) member states is however not only a legal and a policy challenge for the EU, but also a potential existential crisis. If the EU does too little to deal with member state regimes that go back on their commitments to democracy and the rule of law, this risks undermining the EU from within. On the other hand, if the EU takes too drastic action, it may split the EU as well. In the final part, the course will therefore also look at the political reactions (rule of law rapports, Art. 7, infringement cases, rule of law mechanism). We will also dwell on the legal and political strategies coming from below at the member state level where legal mobilization is used by activist judges and civil society, to challenge backsliding using new alliances with EU courts.  Finally, we will discuss whether the fact that the European court is increasingly forced to deal with more and more national cases on democratic backsliding, will specify European constitutional democracy even further. The question is whether this  - in the long run – may challenge also majoritarian democracies and push them in a more constitutional direction.

Education

Core subject in the core subject track in European Politics. Only accessible to students who are admitted to European Politics.

Not accessible to students who have passed exam in the core subject: "Core Subject: Important Challenges in European Governance: Lobbying and Interest Groups" (ASTK18016U) or "Core Subject: Important Challenges in European Governance: The Judicialization of Europe" (ASTK18025U)

Not accessible to students who have passed exam in the elective: "Political Advocacy, Lobbying and the Influence Production Process" (ASTK18437U)

 

NB! All exams (both ordinary and re-exams) will take place at the end of the autumn semesters only, as the course is not offered in the spring

Learning outcome

Knowledge:

  • Knowledge of the aspects that contributed to constitutionalizing the European order and situate it in a comparative as well as national context context.
  • Understanding how the constitutionalization of Europe has impacted member state democracies.
  • Overview over the theoretical approaches that are commonly used to analyze legal integration and its impact on the national level. Including populism, democratic backsliding seen as a reaction to this process.
  • Theoretical and empirical knowledge of how not only member states but also EU institutions themselves react to the constitutionalisation process and democratic backsliding: the course will look into the political branch, lower courts, the public and litigants. It will also include knowledge about how the Court of Justice is increasingly forced to define elements like ‘judicial independence’ and even democracy in the EU and the member states through its case law.

 

Skills:

  • Ability to identify and discuss elements that constrain or enable European constitutionalisation.
  • Apply different theories of how law and politics interact in the EU and how the member states play into this over time.
  • Give an account of the main academic debates pertaining to different aspects of the constitionalization process and its national effects.

 

Competences:

  • Independent reflections on the constitutionalization, populism and democratic backsliding in Europe based on the academic literature
  • Critical analysis of the scope, nature and/or effect of the European constitutionalization process and the national reaction

Classes will be structured around student presentations, lectures, guest lectures and discussions. On each topic, the readings present a theoretical overview which is exemplified with empirical applications on the ground. Students are expected to prepare by reading the assigned literature before each class and be able to ask questions and meaningfully engage with their peers in class discussions.
Each class starts with a 10 minute student presentation that recapitulates the main takeaways from the previous week. Presentations are done in groups, and therefore allow students to prepare a topic in a similar format as the synopsis for the exam in collaboration with peers. We then move on to the week’s lecture and class discussion.

  • Hirschl (2008) “The Judicialization of Politics”. In: The Oxford Handbook of Law and Politics. Ed. by Gregory A. Caldeira, R. Daniel Kelemen, and Keith E. Whittington. Oxford University Press.
  • Gustavsson, S. (2010), Thick and Thin constitutionalism, Statsvetenskabeligt Tidsskrift, 112 nr.1.
  • Alf Ross, (1946), Hvorfor Demokrati? Nyt Nordisk Forlag. Pp. 131-152.
  • Jan Werner Muller, (2012), Militant democracy, The Oxford Handbook of Comparative Constitutional Law.
  • Karl Lowenstein (1937), Militant Democracy and Fundamental Rights, American Political Science Review,  vol. 31 no. 3 pp. 417-43
  • Elections Without Democracy: The Rise of Competitive Authoritarianism Steven Levitsky, Lucan A. Way Journal of Democracy, Volume 13, Number 2, April 2002, pp. 51-65 (Article) Published by Johns Hopkins University Press DOI:https://doi.org/10.1353/jod.2002.0026
  • Martin Loughlin ‘Constitutionalism – an opium for the lawyers,  https://revdem.ceu.edu/2023/03/15/constitutionalism-an-opium-for-the-lawyers/ also as podcast
  • Ginsburg,T. (2003) Judicial review in new democracies, Cambridge: Cambridge University Press, Chapter 1.
  • Lustig, D. & J. H.H Weiler, Judicial Review in the contemporary world – retrospective and prospective, International Constitutional Law review, pp. 315-372.
  • Christoffersen, J.  & M. Madsen, The end of Virtue?, Denmark and the Boomerang of the Internationalization of Human RightsNordic Journal of International Law, 80(3), 257-277.
  • Marlene Wind, Populist Constitutionalism in Scandinavia, in review with European Constitutional Law review, (2025)
  • Edvind Smith,(2018),  Judicial review of Legislation, in H. Krunke & B. Thorarensen, The Nordic constitutions. A Comparative Contextual Study, Hart.
  • H.H. Vink et al (2018), Histories of Human Rights in the Nordic Countries, Nordic Journal of Human Rights, vol. 36, no. 3, p.189-201.
  • Burley, Anne-Marie and Walter Mattli (1993). “Europe before the Court: A Political Theory of Legal Integration”. In: International organization 47.1, pp. 41–76.
  • Weiler, Joseph H. H. (1994). “A Quiet Revolution: The European Court of Justice and Its Interlocutors”. In: Comparative Political Studies 26.4, pp. 510–534.
  • Alter, K. J. (1998). “Who Are the “Masters of the Treaty”?: European Governments and the European Court of Justice”. In: International Organization 52.1, pp. 121–147.
  • Morten Rasmussen and Dorte Sindbjerg Martinsen, EU Constitutionalisation revisited: Redressing a central assumption in European Studies, European Law Journal, 2019, 1-22. 
  • Scicluna, N. & S. Auer, (2023), Europea constitutional unsettlement: testing the political limits of legal integration, International Affairs,
  • Loughlin,M (2022), Against Constitutionalism, Harvard University Press.Chap.1.
  • Davis, G. (2018), Does the Court of Justice own the Treaties?, Interpretitive pluralism as a solution over-constitutionalisation, European Law Journal,24: 358-375.
  • Bellamy, R. (2007), Political Cosntitutionalism, Cambridge: Cambridge University Press.pp. 1-50.
  • Martinsen, D. (2015), An ever more Powerful Court?, Oxford: Oxford University Press.
  • Scicluna, N. & S. Auer, (2023), Europea constitutional unsettlement: testing the political limits of legal integration, International Affairs,
  • Loughlin,M (2022), Against Constitutionalism, Harvard University Press.Chap.1.
  • Davis, G. (2018), Does the Court of Justice own the Treaties?, Interpretitive pluralism as a solution over-constitutionalisation, European Law Journal,24: 358-375.
  • Bellamy, R. (2007), Political Cosntitutionalism, Cambridge: Cambridge University Press.pp. 1-50.
  • Martinsen, D. (2015), An ever more Powerful Court?, Oxford: Oxford University Press.
  • Tushnet, M. Bojan Bugaric, (2022) Power to the People, https://global.oup.com/academic/product/power-to-the-people-9780197606711?cc=dk&lang=en&Good and bad populism? Bugaric and Thusnet
  • Kelemen, R. Daniel (2020), The European Union's authoritarian equilibrium, Journal of European Public Policy, 27:3, 481-499. (19 pages)
  • Rohlfing, R & M. Wind, Death by a thousand cuts: measuring autocratic legalism in the European Unions rule of law conundrum, Democratization, 2022,.
  • Sitter, N & E. Bakke, (2019) Democratic Backsliding in the European Union
  • https://doi.org/10.1093/acrefore/9780190228637.013.1476
  • Bermeo, Nancy. "On democratic backsliding." Journal of Democracy 27, no. 1 (2016): 5- 19.
ECTS
7,5 ECTS
Type of assessment
Oral examination
Type of assessment details
Students will be asked to make an individual oral presentation based on a written paper (synopsis) of max 7200 characters. Although the presentation will be individual, you may write the synopsis alone or in groups of up to three people.

The presentation of the synopsis will be followed by a broader discussion of the entire syllabus of the course, as you are to be graded on the contents of the entire course as such. You will not be graded on the basis of the written synopsis: Grading is made solely based on the oral performance.

Students may bring an outline consisting of maximum 100 keywords to the oral exam. You may not add further comments to the synopsis or to your keyword sheet.
Exams are to be held individually, and no other students are to be present during your presentations.
See the section regarding exam forms of the study regulations for more information on guidelines and scope.
Aid
Written aids allowed
Marking scale
7-point grading scale
Censorship form
No external censorship
Re-exam

In the semester where the course takes place: Synopsis oral exam

In subsequent semesters: Free written assignment

NB! All exams (both ordinary and re-exams) will take place at the end of the autumn semesters only, as the course is not offered in the spring

Criteria for exam assessment

Meet the subject's knowledge, skill and competence criteria, as described in the goal description, which demonstrates the minimally acceptable degree of fulfillment of the subject's learning outcome.

Grade 12 is given for an outstanding performance: the student lives up to the course's goal description in an independent and convincing manner with no or few and minor shortcomings

Grade 7 is given for a good performance: the student is confidently able to live up to the goal description, albeit with several shortcomings

Grade 02 is given for an adequate performance: the minimum acceptable performance in which the student is only able to live up to the goal description in an insecure and incomplete manner

  • Category
  • Hours
  • Class Instruction
  • 28
  • Preparation
  • 167
  • Exam Preparation
  • 10
  • Exam
  • 1
  • English
  • 206

Kursusinformation

Language
English
Course number
ASTK18029U
ECTS
7,5 ECTS
Programme level
Full Degree Master
Duration

1 semester

Placement
Autumn
Studyboard
Department of Political Science, Study Council
Contracting department
  • Department of Political Science
Contracting faculty
  • Faculty of Social Sciences
Course Coordinator
  • Marlene Wind   (3-6f796b426b6875306d7730666d)
Saved on the 01-05-2025

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