The course aims at giving the students the fundamental notions and instruments to analyse the different legal families and legal traditions concerning the organization of public powers and the protection of fundamental rights in a comparative and multilevel perspective. The course will focus on the different legal traditions of the world and the basic principle of constitutional law in historical and comparative perspective. The course will highlight the tension between the different legal traditions and legal globalization, with a specific focus on fundamental rights protection in a broad comparative perspective. The last part of the course will focus on the topic of law and development.
Expected learning outcomes
At the end of the course, students will be able: - to analyse the different legal families and legal traditions, concerning the organization of public powers (form of government) and the protection of fundamental rights in a comparative and multilevel perspective; - to understand the growing interaction between different actors and institutions in promoting and protecting fundamental rights in a global perspective; - to critically discuss the ongoing multiple crises of constitutional democracies in a comparative and historical perspective; - to discuss the most controversial issues of the course through in-class discussion of case-law and they will be able to write a critical argumentative text.
Lesson period: First semester
(In case of multiple editions, please check the period, as it may vary)
Comparing different constitutional systems is "somewhat like travelling. The traveller and the comparatist are invited to break away from daily routines, to meet the unexpected and, perhaps, to get to know the unknown" (Frankenberg 1985). In the light of the this premise, the course aims at addressing the complexity and the interaction of the different legal traditions of the world (Western tradition, Islamic law, Asian law) in comparative perspective. The course will highlight the ongoing tension between the historical and cultural paths of the different legal traditions on one side, and the uniformising effect of legal globalization. How can we reconcile the specificity of the different legal systems with the ongoing convergence among national constitutional systems in their structures and in their protection of fundamental rights? In other words, how can the comparatist reconcile the strongly national attitude of constitutional law with the end of boundaries fostered by globalization processes? Global constitutionalism is based on the assumption that western-type constitutional law has universal application and is not culturally limited in scope. The course will critically asses this far-reaching assumption concerning the one-size fits all liberal constitutionalism, and it will highlight that there are different local adaptation of the same principles of liberal constitutionalism. Constitutional ideas are not only normative rules and doctrines but are also the objects of political and societal conflicts having different legal-cultural context. Specific topics: Part I: Fundamental concepts -What is a tradition? -Why Compare law? -The clash between legal traditions and globalization -Western constitutional systems and constitutionalism in the global South -Form of States in comparative perspective (liberal democracy, authoritarian states, totalitarian states). -New challenges: abusive constitutionalism -Constitutional democracy in Crisis -The Arab spring (guest lecture)
Part II: Convergence and divergence in HR protection. The role of the judiciary -The rise of Juristrocracy. Case law discussion: the Miller 2 case; The ICC case on assisted suicide. -The use of comparative law by Constitutional Courts. The case of Canada. Guest lecture -Human rights: universal or particular? -Convergence and Regionalization in HR protection -Transformative constitutionalism -Cultural rights v. Universal Rights. -Case law analysis: Freedom of religion, same-sex marriage, minority rights, the rights of nature.
Part III: Comparative Law and Development
Comparative Law and development. The case of global social indicators. Development and the Rule of law
Prerequisites for admission
No prerequisites are required
The course will be structured on lectures, guests seminars and the discussion of case-studies.
- Patrick Glenn, Legal traditions of the World (chapter selection) - Peer Zumbansen, Transnational Comparisons: Theory and Practice of Comparative Law as a Critique of Global Governance https://pdfs.semanticscholar.org/2027/6a8e66fb539f22fe9cf6d65ea89c5980b… - V. Zeno-Zencovich, Comparative Legal Systems. A short introduction - David Landau, 'Abusive Constitutionalism' (2013) 47 UCD L Rev 189, 191-216 - David Landau, 'Constitution-Making and Authoritarianism in Venezuela' in Mark Graber, Sanford Levinson and Mark Tushnet (eds), Constitutional Democracy in Crisis (Oxford, Oxford University Press, 2018) 161 - Gonzalo Candia, 'Regional Human Rights Institutions Struggling Against Populism: The Case of Venezuela' (2019) 20(3) German Law Journal, 2019. - Andrea Pin, 'The Transnational Drivers of Populist Backlash in Europe: The Role of Courts' (2019) 20(3) German Law Journal. M. Siems, Comparative law, 2nd edition, Chapter 10-11
Assessment methods and Criteria
Attendant students: Students' grade will be based on class participation and on the discussion of a written paper. Students may write about any topic that interests them in the field of Comparative legal traditions, with the approval of the professor. Non attendant students: Oral Exam. The final mark/grade will be expressed in **/30.