AIMS AND CONTENT

AIMS AND LEARNING OUTCOMES

The objective is to convey some basic notions relating to the historical development, the current physiognomy and the evolutionary trends of constitutional law in a comparative perspective, also in the specific perspective of the forms of protection of fundamental rights and principles. The student should thus acquire and develop knowledge, skills and in general scientific and intellectual tools useful for orienting himself and operating in the most conscious and effective way in contemporary constitutional systems, in which a role unknown until a few decades (or years) ago is played by constitutional justice, in its various forms, and from "supranational" sources and courts affecting the vast, and virtually unlimited, field of the protection of fundamental rights and principles (susceptible, as such, of assuming concrete importance in any sector of law and in any type of dispute).

To this end, we will try, among other things, to develop a critical awareness of the historical dimension of the current legal phenomenon, in (and, so to speak, through the) disciplinary field of reference, as well as that of its deeper dynamics and its development prospects.

Through individual study and even more so through participation in lessons, the student should in particular (although similar abstractions and simplifications may apply):

- understand and learn the main lines of development of modern and contemporary constitutionalism, in a comparative perspective;

- contextualize and interpret - also through a historical and comparative approach - the sources, concepts and institutions characteristic of constitutional law in the modern and contemporary age, in their alternation, transformation and/or stratification;

- grasp the links between legal history and cultural, political and social history in different space-time contexts;

- know and be able to critically interpret, also in the light of additional elements, the main regulatory sources that regulate, in some of the most common and useful countries of reference, the conduct of constitutional justice, as well as the subjects and structure of the systems considered;

- understand and know the functioning mechanisms (including the different possible outcomes, in light of the varied disciplines and practices relating to the typology and effects of decisions) of the constitutional process, with awareness of its implications for the protection of fundamental rights and principles and for institutional balances;

- understand and know the main features of the supranational systems for the protection of fundamental rights and principles, in themselves and in their repercussions at a national level, first of all in terms of sources and judicial activity (as well as to a certain extent, directly or indirectly, of legislative and administrative activity);

- understand, know and, to the extent possible, master (even in the most complex and controversial aspects) the coordination and in general the relationships between the main national, European and international sources (and courts) in the disciplinary field of reference;

- better understand the wealth of tasks, opportunities and responsibilities of legal operators, primarily magistrates and lawyers, in the current multifaceted (and polycentric) regulatory and jurisdictional framework;

- be able to understand and critically evaluate, with independent judgment, any proposals for constitutional revision and institutional reform;

- know how to critically examine, with independent judgement, regulatory materials, judicial rulings of the Constitutional Courts and European Courts and scientific articles in the disciplinary field of reference;

- perfect one's ability to express oneself with appropriate (also) legal language.

TEACHING METHODS

The teaching will essentially take place through frontal lessons held by the lecturer, also with the support of video projection, for a total of 54 hours (equal to 9 ECTS).

Attendance at lessons, which will be monitored regularly, is strongly recommended and encouraged.

"Structured" forms of active student participation may be envisaged (such as the presentation of research and in-depth studies on agreed topics), on a voluntary basis.

Occasionally, scholars, magistrates, professionals or officials who have special expertise or work experience on such topics may be invited to speak on certain topics of particular interest and current affairs, in order to allow students to acquire greater awareness of the concrete and applicative dimension of the subject and/or its deeper implications.

Any teaching materials to be used - compulsorily or optionally - for the purposes of preparing for the final exam and/or for the most fruitful participation in the lessons will be made available in Aulaweb or in other ways that will be communicated.

SYLLABUS/CONTENT

The course will focus on some essential notions relating to the historical development, the current physiognomy and the evolutionary trends of constitutional law from a comparative perspective, also in the specific perspective of the forms of protection of rights and fundamental principles.

During the lessons - net of any additions and modifications possibly suggested by the discussion with the students and the stimuli that may derive from them - the overall topic will be explored and illustrated following above all three directives, roughly corresponding to as many blocks of lessons.

First of all (mainly in the initial part of the course), an articulated, albeit synthetic, historical and conceptual reconstruction of the development of constitutional law will be developed, through some targeted documentary references which, on the one hand, will be functional to a better understanding, also on a technical level, of the individual institutes and topics to be discussed (as well as, in general, of the contemporary legal, institutional and political reality); and, on the other hand, they will "cover" or at least touch upon some of the most well-known and important stages (positively or negatively) of Western constitutional (and not only constitutional) history: the Magna Carta, the American Revolution, the French, the constitutionalism of the 19th century, the dictatorships of the 20th century...

Some essential notes on the main forms of State and government of current interest will be made within the framework or in the margins of this reconstruction or in the subsequent part of the course.

Secondly, some of the most influential constitutional justice systems, whether established or more recently established, will be examined in detail: specifically the American, Austrian, Italian, German, French and Spanish systems; some notes will be dedicated to other systems and a summary will be provided on the diffusion of the various models worldwide.

Finally, we will look at the developments that have recently characterized the two main European "systems" operating in various ways in the (very vast and virtually "boundless") field of fundamental rights and principles: the one established with the European Convention for the Protection of human rights and fundamental freedoms, today strongly strengthened by virtue of regulatory changes brought about by some additional protocols and also by the actions of the Strasbourg Court itself; and the "Euro-unitary" one (community yesterday and today), where the innovation with the greatest impact, from the relevant point of view here, is represented by the entry into force of the Charter of Fundamental Rights of the European Union. Particular attention will be paid to the constitutional implications (i.e., first of all, to the profound repercussions on the system of sources and on the activity of national and supranational institutions and judicial bodies, in themselves and in their relationships) of these developments.

In more detail, the following topics will be covered (in broad terms and in a non-exhaustive way):

The jurisdictional guarantee of rights and the role of the judicial power (in its various configurations and characteristics): historical and comparative notes starting from the Magna Carta (articles 39 and 40)
The nature and role of “law” in the French Declaration of Rights of 1789; the institution of the "legal reserve"; the "problem" of the constraints placed on the legislator
Nineteenth-century constitutionalism; the “granted” constitutions; the decline of natural law ideas and the theory of "subjective public rights"; the idea of ​​"parliamentary sovereignty", its presuppositions, its limits, its degenerations
The advent of authoritarian regimes between the two world wars
The origins of constitutional justice (focus on the Marbury vs Madison ruling)
The American system of “judicial review” and its development
The emergence of an alternative model in Europe: the centralized model
The Austrian system and its developments
The Italian system
The German system
The French system and its developments
The Spanish system
The "multilevel" protection of rights and the so-called “supranational constitutional justice”
The European Convention on Human Rights
The role of the Strasbourg Court and the so-called “ECHR system”
The role of the ECHR in domestic legal systems
The protection of fundamental rights and principles in the EU/Eurounitary system
The Charter of Fundamental Rights and the role of the Court of Justice
The role of the Charter of Fundamental Rights in domestic systems
Summary framework of the current tools, mechanisms and methods of protection of fundamental rights and principles in the interweaving of national and supranational sources and courts
For attending students, the topics covered in class will make up, in their non-random concatenation, the central part and the overall "backbone" of the exam program, which will however be explored and integrated through the study of the texts indicated or

RECOMMENDED READING/BIBLIOGRAPHY

For attending students

The exam program for attending students (i.e. those who will actually follow the entire course, without absences or with a very low number of absences) can be largely personalized, within the framework of the following general indications.

1) As regards the historical and comparative reconstruction part, reference must essentially be made to the notes and any teaching materials (slides, supplementary readings, etc.) that may be made available or indicated during the course.

2) As regards the part of comparative constitutional justice, reference will also be made to a manual of comparative constitutional justice (limited to the parts that will be indicated or agreed upon) or to the part relating to constitutional justice within a manual of public law compared, according to what will be specified during the lessons and via aulaweb.

3) Finally, with regards to the part relating to the new supranational dimension of the protection of fundamental rights and principles, and of constitutionalism in general, it will be possible to opt - in addition to the notes and any other teaching materials - for one or more of the following texts (always limited to the parts that will be indicated or agreed upon)

V. Zagrebelsky, R. Chenal, L. Tomasi, Manuale dei diritti fondamentali in Europa, Bologna, Il Mulino, 2019 (or more recent edition)
P. Costanzo, L. Mezzetti, A. Ruggeri, Lineamenti di diritto costituzionale dell’Unione europea, Turin, Giappichelli, 2019 (or more recent edition)
E. Malfatti, I “livelli” di tutela dei diritti fondamentali nella dimensione europea, Turin, Giappichelli, 2018 (or more recent edition)
V. Sciarabba, Il ruolo della CEDU tra Corte costituzionale, giudici comuni e Corte europea, Milan, Key Editore, 2019

For non-attending students

Unless different solutions are agreed upon with the teacher in the presence of particular motivations and interests, students who do not attend the entire course with sufficient assiduity will have to prepare for the exam on one of the following volumes of their choice:

G. Morbidelli, L. Pegoraro, A. Rinella, M. Volpi, Diritto pubblico comparato, Turin, Giappichelli, 2016 (or more recent edition)
A. Di Giovine, A. Algostino, F. Longo, A. Mastromarino, Lezioni di diritto costituzionale comparato, Milan, Le Monnier Mondadori, 2017 (oor more recent edition)
L. Pegoraro, A. Rinella, Sistemi costituzionali comparati, Torino, Giappichelli, 2017 (or more recent edition).

Important clarifications

A significant differentiation will be ensured between the individual study load of regularly attending students and that of non-regularly attending students, such as to entail for the latter, in line with the forecasts contained in the "Study Manifesto", an increase in the "programme" of approximately 200-250 pages, in any case between 90 and 360 pages.

Regularly attending students will also be able to benefit from the further benefits indicated elsewhere (e.g. with reference to the exam methods), as well as, first of all, the advantage in itself deriving, especially in a course of this type, from careful participation. to the lessons (the content of which will largely coincide with what will be asked of the students during the final interview).

In Aulaweb, or in other ways that will be communicated, any additional teaching materials will be made available to be used - compulsorily or optionally - for the purposes of preparing for the final exam and/or for more informed and fruitful participation in the lessons.

For intuitive reasons, previous and now outdated editions of the indicated volumes must not be used, nor other texts or teaching aids not agreed upon with the teacher ("bignami", compendiums, summaries, diagrams and various materials available online etc.... such presumed "supports ” resulting very often characterized by gross and misleading simplifications – therefore counterproductive for the purposes of preparation and exams – if not by actual errors).

TEACHERS AND EXAM BOARD

Exam Board

VINCENZO SCIARABBA (President)

FRANCESCA BAILO

MICHELE FRANCAVIGLIA (President Substitute)

MARCO MARAZZINI (Substitute)

LESSONS

LESSONS START

The lessons will be held in continuity with the lessons of the first module, in the second semester.

Class schedule

The timetable for this course is available here: Portale EasyAcademy

EXAMS

EXAM DESCRIPTION

The final exam will take place in oral form.

ASSESSMENT METHODS

During the final exam, students will be invited to answer a certain number of questions aimed at verifying the knowledge acquired and the ability to orient themselves in the subject.

The greater or lesser number of questions, their greater or lesser specificity, the greater or lesser duration of the exam, the possible interruption of the student's answer in order to formulate more precise "sub-questions" or abandon the starting question to favor of a different question will not be understood as signals of good or bad progress of the exam (much less as attempts to penalize or unduly facilitate the student being questioned), as they are instead, simply and solely, methods for ascertaining in the most correct way possible - in the limited time available - the quantity and quality of the knowledge acquired.

The correctness and precision of the presentation, the appropriate use of legal vocabulary and, in particular, the ability to critically reason with regard to the topics studied will also constitute evaluation parameters.

In the evaluation of attending students, it will also be possible to take into account any further forms of direct or indirect verification of preparation within the lessons (interventions in the classroom, carrying out and presenting research and in-depth studies on agreed topics, etc.): all on a voluntary, therefore completely optional, and with a reward logic of incentive for active participation in the lessons.

Alternatively (or in addition), attending students may be given the opportunity to take part of the final exam on previously chosen topics, according to methods that will be specified during the course.

In any case, the possibility remains of asking questions on any part of the program and of defining the final grade on the basis of a balanced and thoughtful evaluation of the overall preparation (very serious gaps or misunderstandings which cannot, for example, be "compensated", in line with principle, from the successful completion of the exam on other parts of the program).

Students who have valid certification of disability or Specific Learning Desorders (DSA) on file with the University may request the use of compensatory measures during the exams (e.g. additional time, concept maps, modifications in the written/oral mode), following the guidelines (p. 5) published here. In any case, for further information, please contact the Department’s disability liaison: Isa.Fanlo@unige.it

Exam schedule