Course teached as: B027699 - GIUSTIZIA COSTITUZIONALE COMPARATA 5-years Single Cycle Degree in LAW
Teaching Language
Italian
Course Content
The course aims at providing students with the necessary tools to understand the different models of constitutional justice, their historical evolution and mutual influence, their current implementation and their peculiarities in a comparative perspective.
Specific constitutional justice models will be analyzed and compared. The legal systems taken into consideration will also be analyzed by using cases and materials concerning some common issues.
Program for attending students:
- students who have regularly attended the course will take the exam on the notes taken from the lessons and on any material indicated by the professors at the beginning of the course.
Program for non-attending students:
A) M. Caielli e E. Palici di Suni, La Giustizia Costituzionale nelle democrazie contemporanee, Wolters Kluwer Italia, 2017;
B) A. Di Martino, Le opinioni dissenzienti dei giudizi costituzionali, Napoli, Jovene, 2016
Cap. I (Par. 6-7 pp. 56-64), Cap. IV e Cap V.
Learning Objectives
The course aims at providing students with a complete knowledge of the main models of constitutional justice in a comparative perspective. The course aims at providing students with the ability to recognize and compare topics like the composition, structure and functioning of constitutional justice systems and their role in the respective forms of government.
Students will be able to independently research and analyze case law in order to verify similarities and differences between the institutional and hermeneutical approaches of the different models of constitutional justice and to understand the internal dynamics of the models, their reciprocal influences and their dialogue with other constitutional and supranational courts.
Moreover, students will be able to compare the most relevant issues related to the various models of constitutional justice, their interrelation and their development (e.g. access to justice, counter-majoritarian difficulty, protection of fundamental rights, use of the comparative method as a hermeneutical canon, courts dialogue etc.) and to critically think upon the evolution of the models and the convergence / divergence trends at the global level.
Prerequisites
"Constitutional law I" and "Civil law I" shall be already taken. “Comparative legal systems” is strongly recommended.
This requirement does not apply to Erasmus+ students and other exchange students.
Teaching Methods
The course will take place in a seminar form.
There will be also some lectures, occasionally taught by foreign professors. Furthermore, cases and scholarly writings indicated in advance will be discussed in class.
Students are constantly encouraged to express their opinions and to compare what they already know with the new knowledge acquired through the course.
The course syllabus will be available to attending students at the beginning of the course.
Type of Assessment
Attending students:
Participation to in class discussions and paper to be presented orally during the course starting from a bibliography distributed in advance.
In particular, the term paper consists in the deepening of a specific foreign constitutional justice system (the constitutional framework, the legal sources, the form of government, the composition and functions of the Constitutional Court, etc.) or in the deepening of a common constitutional justice issue in a comparative perspective (access to justice, protection of fundamental rights, collegiality and dissenting opinion, dialogue among courts, legal communication, etc.).
Starting from the basic bibliography suggested in advance, the student must show to be able to expand the bibliography, to research and analyze case law, to deepen critically and in a comparative perspective the assigned topic and to present her work orally in class, also using slides. He/She will have to demonstrate to be able to work in a team and to stimulate debate in the classroom.
Non-attending students:
Oral examination usually consisting of two or three questions.
The first question deals with a broad topic, in order to allow the student to show his/her knowledge as well as the ability to connect the different parts of the program using the comparative method.
The second question might be narrower and deals with a different part of the program.
The professor may ask a third question when the previous answers leave a margin of doubt about the evaluation to be assigned, for example because there is a significant difference in the evaluation of the previous answers.
The evaluation is sufficient if all answers are sufficient and there are no serious gaps or mistakes. The evaluation is excellent if all the questions are treated exhaustively, with a critical approach and a correct use of legal language.
Course program
The course aims at studying the models of constitutional justice in their historical perspective and in their current functioning.
First of all, the course aims at offering to the students an introduction in order to identify the macro-models and their theoretical foundations, then the focus will be on the current experiences of constitutional justice.
Then, the students will explore the judicial review of legislation in the United States and in the other legal systems that have adopted a similar model (Greece, Ireland, Scandinavian countries on one side, Canada and Australia on the other).
Secondly, the systems of continental Europe will be described with particular regard to the most significant experiences (Austria, Germany, Spain, Portugal) and also taking into consideration the former socialist countries.
Finally, the peculiarities of the French legal system will be highlighted and, among the countries where there lacking a judicial review system, the UK legal system will be analyzed in light of the Human Rights Act (1998) and the Constitutional Reform Act (2005).
These models will be analyzed by using materials and case law on some debated issues (abortion, euthanasia, gender and sexual orientation, public funding for parties, electoral laws) that will allow to verify the different hermeneutical approaches. Furthermore, some theoretical questions regarding the role of constitutional courts in the democratic process, collegiality and dissenting opinion, and the various approaches of the courts in the global dialogue will also be explored.
From the description of the models, the role of constitutional justice in the definition of the forms of government will be underlined. On the one hand, the problems related to "vertical" relations between constitutional courts and supranational courts and, on the other hand, those relating to "horizontal" relations or to dialogue among courts will come to light.