Comparative legal traditions

A.A. 2021/2022
6
Crediti massimi
42
Ore totali
SSD
IUS/21
Lingua
Inglese
Obiettivi formativi
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.
Risultati apprendimento attesi
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.
Programma e organizzazione didattica

Edizione unica

Responsabile
Periodo
Primo semestre
Please, look at the Moodle webpage to get information about classes and exams. No variations in Course syllabus and bibliography. More specific information will be provided over the upcoming months, based on the evolution of the public health situation.
Programma
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.
The second part of the course will focus on the ongoing constitutionals tensions within the EU. It will address the rule of law crisis and the tensions in the field of human rights protection.

Specific topics:
Part I
-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 rise of Juristrocracy. Case law discussion.
-The use of comparative law by Constitutional Courts.
-Human rights: universal or particular?
-Transformative constitutionalism
-Case law analysis: Freedom of religion, same-sex marriage, minority rights, the rights of nature.

Part II: 4 EU plus Module (20 hours)
- Legal traditions in Europe
- The EU accession process and the Copenhagen Criteria
- The rule of law crisis in Europe
- Conditionality and human rights protection
- Convergence and Regionalization in HR protection
Prerequisiti
No prerequisites are required
Metodi didattici
The course will be structured on lectures, guests seminars and the discussion of case-studies. Students will have the unique opportunity to discuss relevant questions with key international experts in comparative constitutional law.
Materiale di riferimento
The reading material will be made available on the Moodle website of the course.
Modalità di verifica dell’apprendimento e criteri di valutazione
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.
IUS/21 - DIRITTO PUBBLICO COMPARATO - CFU: 6
Lezioni: 42 ore
Docente/i
Ricevimento:
Su Appuntamento, scrivendo a antonia.baraggia@unimi.it
Fino a diversa comunicazione, il ricevimento avverrà sulla piattaforma Teams, previo appuntamento.