Prof Jo Murkens

This course is available on the Executive Master of Laws (ELLM). This course is not available as an outside option to students on other programmes.

Available to Executive LLM students only. This course will be offered on the Executive LLM during the four year degree period. The Law School will not offer all Executive LLM courses every year, although some of the more popular courses may be offered in each year, or more than once each year. Please note that whilst it is the Law School's intention to offer all Executive LLM courses, its ability to do so will depend on the availability of the staff member in question. For more information please refer to the Law School website.

Constitutional authority is never simply given. It must be created, sustained, and defended – and it can be lost. LL408E examines the foundations, operation, and vulnerability of constitutional orders across multiple jurisdictions, asking not merely how constitutions are designed but whether, and under what conditions, they work.

Part I develops the theoretical and historical foundations of the discipline. It examines the classical problems of constitutional authority – constituent power, separation of powers, and legitimacy – before tracing how those problems are resolved (or deferred) through different models of constitutional design. It then investigates the historical origins of judicial review in England and the United States, the reconstruction of constitutional orders in France and Germany after 1945, and the global expansion of rights-based adjudication in the post-war period. Students are equipped with the conceptual tools – normativist, decisionist, and democratic – needed to analyse constitutional orders critically rather than descriptively.

Part II subjects those foundations to stress. It examines constitutional change and the conditions under which amendment becomes rupture; the structural tensions of presidentialism, executive power, and emergency government; and the contemporary phenomenon of constitutional backsliding, including court-packing, jurisdiction-stripping, and the rhetorical delegitimation of judicial independence. The course concludes by asking what institutional features enable courts and constitutions to survive political pressure – and when they do not.

Throughout, the course develops a critical perspective on constitutional idealism: the assumption that formal constitutional arrangements reliably constrain political power or reliably produce democratic outcomes. Rather than treating constitutions as normative constraints on politics, LL408E approaches them as sites of ongoing contestation – between institutions, between generations, and between competing visions of democratic authority. Students are encouraged to make independent connections across legal, political, and philosophical traditions, and to assess constitutional orders not only by their design but by their resilience under pressure.

24-26 hours of contact time.

Students will have the option of completing a formative assessment set by their teacher. 

There is no set book for this course. All materials will be made available in advance on Moodle.

Oral examination (100%).