Comparative Legal Traditions

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