JJUB55108U Ancient and Modern Constitutionalism - NOTE: the course is cancelled in the autumn semester 2016
This course will examine three ancient regimes of constitutional law: Greek, Roman, and Ancient Jewish law.
We will study the main constitutional texts of each epoch and the most important modern and ancient literature related to each regime. One of the main goals of the course is to analyze the influence of ancient constitutions and constitutional jurisprudence on contemporary constitutional law. The course is divided methodologically in three segments to provide a broad view to the student of the major considerations and topics related to ancient constitutionalism.
Critically reflect upon the concept of constitutionalism; Analyze the role democracy in constitutional legitimacy. Put into perspective the concept of ancient constitutionalism involved in the topics analyzed; Think about the concept of modern constitutionalism.
CHAPTER ONE: THE CREATION OF A SACRED CIVIL DISCOURSE Sanford Levinson, Constitutional Faith, Princeton University Press, 1988, Princeton. [This is your course book which should be purchased.] Thomas C. Grey, The Constitution as Scripture, 37 Stan L. Rev 1, November, 1984. Charles Howard McIlwain, Constitutionalism: Ancient and Modern, Liberty Fund. Inc, Indianapolis, IN, pp. 1-38
Session 2- In this introductory class, we will introduce the main concepts, theories and objectives of this course. We will analyze Constitutional texts as Scriptures. The class will discuss the origins and influences of the religious discourse on the configuration of the modern constitutional systems. Are Constitutions a sort of Civil Sacred Scripture? How has this sort of discourse been created? We will analyze the loyalty oaths and also the moral dimensions of this new faith. To develop this first session, we will analyze and comment on the first, second and third chapters of the book Constitutional Faith by Sanford Levinson.
Session 3- We will continue studying the features of this civil sacred discourse and the pro and contra arguments of this discourse. We will comment on Chapters Four, Five and Six of Levinson’s Constitutional Faith, and the contributions of the Law Schools (jus-positivism) to maintenance of a hermetic and self-dependent constitutional discourse. In this session, we will specially comment some of the case law trying to find the consequences of the “sacred constitutional discourse.”
Session 4- In this session we will comment the article The Constitution as Scripture by Thomas Grey, especially the chapter on constitutional symbolism. We will link this article conclusion with the work of Levinson. The second part of the class discussion is going to be a comparative constitutional exercise. We will try to know if all the constitutions around the world are “sacred” or if this is a single phenomenon of some constitutional systems. Conclusions of the first Chapter.
CHAPTER TWO: THE INFLUENCES OF THE JEWISH LAW TO THE MODERN CONSTITUTIONALISM John Maxcy Zane, The Story of Law, Liberty Fund, Inc, Indianapolis, IN, pp. 79-97 E.C. Wines, Commentaries on the Laws of the Ancient Hebrews; With an Introductory Essay on Civil Society and Government, Presbyterian Board of Publication, Philadelphia, 1853, pp. 2-100, 393-456, 632-640.
Samuel J Levine, Unenumerated Constitutional Rights and Unenumerated Biblical Obligations: A Preliminary Study in Comparative Hermeneutics, 15 Const. Commentary 511, Fall 1998. Emil A Kleinhaus, History as Precedent: The Post-Originalist Problem in Constitutional Law, 110 Yale Law Journal 121, October 2000. III.
Session 5- We will work through the main imprints of the Jewish Law on the Contemporary Constitutional Systems. This first session will be an introduction to the main Jewish texts (Torah, The Ten Commandments). We will comment on some introductory literature that recognizes these imprints. The works of Wines and Maxcy about the Jewish Law will be discussed. In this session we will compare the influx of the Jewish Law with other religions in our constitutional and legal systems. Session 6- The material in this chapter explores some of the particular influences of the Jewish Law to the modern constitutionalism.
CHAPTER THREE: MIXED CONSTITUTIONALISM AMONG THE GREEKS John Maxcy Zane, The Story of Law, Liberty Fund, Inc, Indianapolis, IN, pp. 98-14 Scott Gordon, Controlling the State, Constitutionalism from Ancient Athens to Today, Harvard University Press, Cambridge, Massachusetts, 2002, pp. 60-85 Glenn R. Morrow, Plato’s Cretan City, A Historical Interpretation of the Laws, Princeton University Press, Princeton, 1993, pp. 3-13, 153-211, 521-543. Eric Havelock, Plato’s Politics and the American Constitution, Harvard Studies in Classical Philology, Vol.93 (1990), pp.1-24. Aristotle, The Politics and The Constitution of Athens, Cambridge University Press, New York, 1996, pp. 61-122, 211-263.
Session 7- We now begin to turn to a fundamental question in constitutionalism: the theory of mixed constitution. The first session of this course is going to be an analysis/introduction to the Greek political and juridical system. We will comment on some introductory works related to the law among the Greeks, and the Greek Philosophy of Law. Are Constitutions democratic? Session 8 - 9 Plato In these sessions we will study the work of Plato on mixed constitutionalism and the influences of this theory on modern constitutionalism. The understanding of the work of Plato in mixed constitutionalism is transcendent to appreciate the work of other thinkers. We will use the work of Morrow to introduce this important thinker and therefore we will analyze some fragments of the Republic. The lecture and critique on the work of Plato will also be commented on and exposed in this session. Sessions 10-11 Aristotle The last session about the Greek mixed constitutionalism is going to be based on the work of Aristotle. We will use the third, fourth and part of the fifth books of The Politics to analyze the work of Aristotle in the concept of mixed democracy. Therefore we will compare the works of Plato and Aristotle in this issue. Finally the influences of the Aristotelian Mixed Democracy to the modern constitutionalism are going to be located and commented on in this session. We will analyze the main transcendence of Aristotle to some of the drafters of the modern constitutions.
CHAPTER FOUR: THE ROMAN MIXED CONSTITUTIONALISM Charles Howard McIlwain, Constitutionalism: Ancient and Modern, Liberty Fund, Inc, Indianapolis, IN, pp. 39-60 John Maxcy Zane, The Story of Law, Liberty Fund, Inc, Indianapolis, IN, pp. 148-173 Cicero, De Re Publica, De Legibus, Translation Clinton Walker Keyes, William Heinemann, London, 1968, pp. 65-113, 459-517 Polybius, The Histories of Polybius, Translation by Evelyn S. Shuckburgh, Indiana University Press, Bloomington, 1962, pp. 459-508.
Session 12 – Introduction to the Roman law. We will analyze the influence of the Greek thought to the Roman Political system. We will focus this session on the Roman constitutional system and Roman Politics. We will analyze some of the more important features of the Constitution of Rome and the important transcendence of this system to ours nowadays.
- 15 ECTS
- Type of assessment
- Written examinationIndividual written assignment
- Marking scale
- 7-point grading scale
- Censorship form
- No external censorship
- Exam period
December 9, 2016
Februar 10, 2017