Comparative Legal Traditions
A.Y. 2020/2021
Learning objectives
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.
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
By the end of the course, students should be able to:
- Understand the different legal traditions and the basic principle of constitutional law in historical and comparative perspective.
- Understand the tension between legal tradition and legal globalization.
- Understand the complexity of the fundamental rights protection system in a broad comparative perspective.
- Understand the different legal traditions and the basic principle of constitutional law in historical and comparative perspective.
- Understand the tension between legal tradition and legal globalization.
- Understand the complexity of the fundamental rights protection system in a broad comparative perspective.
Lesson period: First semester
Assessment methods: Esame
Assessment result: voto verbalizzato in trentesimi
Single course
This course cannot be attended as a single course. Please check our list of single courses to find the ones available for enrolment.
Course syllabus and organization
Single session
Responsible
Lesson period
First semester
Classes will be live-streamed on Microsoft Teams, following the lessons timetable.
Live-streamed lessons will be recorded and will be available on the online platform.
The course will alternate and combine lectures and seminar teaching. Classes may require prior readings and include pre-recorded components.
PROGRAM: The course syllabus and reference material are unchanged.
EXAMS: The exam will take place n the Microsoft Teams platform.
If the health situation allows it, compatibly with the availability of the classrooms and compliance of the necessary safety conditions, the exam will take place in the classroom.
In any case, the possibility of taking the exam remotely will be ensured for students who do are in the position of not being able to move from their place of residence and/or domicile.
More precise updates will be available on the Ariel website of the course to be checked regularly.
Live-streamed lessons will be recorded and will be available on the online platform.
The course will alternate and combine lectures and seminar teaching. Classes may require prior readings and include pre-recorded components.
PROGRAM: The course syllabus and reference material are unchanged.
EXAMS: The exam will take place n the Microsoft Teams platform.
If the health situation allows it, compatibly with the availability of the classrooms and compliance of the necessary safety conditions, the exam will take place in the classroom.
In any case, the possibility of taking the exam remotely will be ensured for students who do are in the position of not being able to move from their place of residence and/or domicile.
More precise updates will be available on the Ariel website of the course to be checked regularly.
Course syllabus
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
Part II: Convergence and divergence in HR protection. The role of the judiciary
-The rise of Juristrocracy. Case law discussion.
-The use of comparative law by Constitutional Courts.
-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
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
Part II: Convergence and divergence in HR protection. The role of the judiciary
-The rise of Juristrocracy. Case law discussion.
-The use of comparative law by Constitutional Courts.
-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
Teaching methods
The course will be structured on lectures, guests seminars and the discussion of case-studies.
Teaching Resources
- 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/2027/6a8e66fb539f22fe9cf6d65ea89c5980bc8f.pdf
- 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
- Peer Zumbansen, Transnational Comparisons: Theory and Practice of Comparative Law as a Critique of Global Governance
https://pdfs.semanticscholar.org/2027/6a8e66fb539f22fe9cf6d65ea89c5980bc8f.pdf
- 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.
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.
IUS/21 - COMPARATIVE PUBLIC LAW - University credits: 6
Lessons: 42 hours
Professor:
Baraggia Antonia
Professor(s)
Reception:
Mondays 12:15-13:30, please book on https://calendly.com/antonia-baraggia/15min
On-line on Teams or in presence, please specify it when booking the meeting.