AIMS AND CONTENT

AIMS AND LEARNING OUTCOMES

The aim is to convey some basic notions relating to the historical development, current physiognomy and 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 themselves 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 by the "supranational" sources and courts affecting the vast, and virtually unlimited, field of protection of fundamental rights and principles (susceptible, as such, to assume concrete relevance 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 deepest dynamics and its development prospects.

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

- 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 characteristic institutions of modern and contemporary constitutional law, in their alternation, transformation and/or stratification;

- grasp the connections 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 normative sources that govern, in some of the countries of most common and useful reference, the development of constitutional justice, as well as the subjects and the structure of the systems considered;

- understand and know the operating mechanisms (including the different possible outcomes, in the light of the various 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 of protection of fundamental rights and principles, in themselves and in their repercussions at the 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 relevant disciplinary field;

- 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;

- be able to critically examine, with independent judgment, normative materials, jurisdictional pronouncements of the Constitutional Courts and European Courts and scientific articles in the relevant disciplinary field;

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

TEACHING METHODS

5.000 / 5.000

Risultati della traduzione

Risultato di traduzione

The course will focus on some essential notions relating to the historical development, current physiognomy and evolutionary trends of constitutional law from a comparative perspective, also in the specific perspective of the forms of protection of fundamental rights and principles. During the lessons – net of any additions and changes that may be suggested by the discussion with the students and the stimuli that may arise from them – the overall theme will be explored and illustrated following three guidelines in particular, roughly corresponding to as many blocks of lessons. Firstly (mainly in the initial part of the course), a detailed, albeit synthetic, historical and conceptual reconstruction of the development of constitutional law will be developed, through some targeted documentary references that, on the one hand, will be functional to a better understanding, also on a technical level, of the individual institutions and topics to be covered (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 on some of the most well-known and important stages (positive or negative) of Western constitutional (and not only constitutional) history: the Magna Carta, the American Revolution, the French Revolution, 19th-century constitutionalism, 20th-century dictatorships... An overview of the main forms of State and, above all, of government of current interest will be carried out within the framework (or on the sidelines) of this reconstruction or in the subsequent part of the course. Secondly, some of the most influential systems of constitutional justice, of ancient or more recent institution, will be examined in detail: specifically the American, Austrian, Italian, German and French systems; some notes will be dedicated to other systems and a summary framework will be provided on the diffusion of the various models at a global level. 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 by the European Convention for the Protection of Human Rights and Fundamental Freedoms, today strongly strengthened by virtue of regulatory changes made by some additional protocols and also by the work of the Strasbourg Court itself; and the (yesterday Community and today) “Euro-unitary” one, where the novelty 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 jurisdictional bodies, in themselves and in their relationships) of these developments. In more detail, the following topics will be discussed (in broad terms and not exhaustively): The jurisdictional guarantee of rights and the role of the judiciary (in its various configurations and characteristics): historical and comparative notes starting from the Magna Carta (articles 39 and 40) The nature and role of the “law” in the French Declaration of Rights of 1789; the institution of the “reserve of law”; the “problem” of the constraints placed on the legislator Nineteenth-century constitutionalism; “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 “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 internal legal systems The protection of fundamental rights and principles in the Community/Eurounitatio legal system The Charter of Fundamental Rights and the role of the Court of Justice The role of the Charter of Fundamental Rights in internal legal systems Summary of the current instruments, 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, in any case to be explored and integrated through the study of the texts indicated or agreed upon and any other teaching materials.

For non-attending students, the program will obviously only be that which can be obtained from the reference texts.

SYLLABUS/CONTENT

Teaching will be essentially delivered through lectures, also supported by video projection.

Attendance at lectures, which will be recorded regularly, is strongly recommended and encouraged.

“Structured” forms of active student participation may be provided (such as the presentation of research and in-depth analyses on agreed topics), on a voluntary basis.

Occasionally, scholars, magistrates, professionals or officials with special expertise or work experience on such topics may be invited to speak on certain topics of particular interest and relevance, 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 – obligatorily or optionally – for the purposes of preparing for the final exam and/or for more profitable participation in lectures will be made available on Aulaweb or in other ways that will be communicated.

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 customized, within the framework of the following general indications.

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

For further information, reference can be made to one of the following texts:

• G. Floridia, La costituzione dei moderni. Profili tecnici di storia costituzionale, Giappichelli, 1991 (pdf open access available)

• C. Martinelli, Le radici del costituzionalismo. Idee, istituzioni e trasformazioni dal Medioevo alle rivoluzioni del XVIII secolo, Giappichelli, 2016 

For those who wish to briefly but effectively delve into the topic of forms of government (beyond what will be done during the lessons) we certainly recommend

• M. Volpi, Libertà e autorita. La classificato delle forme di Stato e delle forme di governo, Giappichelli, 2022 (esp. Introduction, pp. 7-16 and Chapter II, pp. 103-207).

For a ‘well-rounded’ but synthetic treatment of the main constitutional systems of reference (United Kingdom, USA, Switzerland, Germany, France, Spain) you can refer to

• F. Furlan, S. Gianello, M. Iacometti, C. Martinelli, G.E. Vigevani, M.P. Viviani Schlein, Costituzioni comparate, Turin, Giappichelli, 2022

2) As regards the part of comparative constitutional justice, reference will be made in addition 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 comparative public law, as will be specified during the lessons and via aulaweb.

3) Finally, as regards the part relating to the new supranational dimension of the protection of fundamental rights and principles, and in general of constitutionalism, 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, Manual of Fundamental Rights in Europe, 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, The “levels” of protection of fundamental rights in the European dimension, Turin, Giappichelli, 2018 (or more recent edition)
V. Sciarabba, The role of the ECHR between the Constitutional Court, ordinary judges and the European Court, Milan, Key Editore, 2019

For non-attending students

Unless otherwise agreed with the teacher in the presence of particular motivations and interests, students who do not attend the entire course with sufficient assiduity must prepare the exam on one of the following volumes, of their choice:

G. Morbidelli, M. Volpi, G. Cerrina Feroni, Diritto costituzionale comparato, Turin, Giappichelli, 2020 or ed. most recent

G. Morbidelli, L. Pegoraro, A. Rinella, M. Volpi, Comparative Public Law, Turin, Giappichelli, latest edition

A. Di Giovine, A. Algostino, F. Longo, A. Mastromarino, Lessons in Comparative Constitutional Law, Milan, Le Monnier Mondadori, latest edition

L. Pegoraro, A. Rinella, Comparative Constitutional Systems, Turin, Giappichelli, latest edition
As an alternative to the 4 volumes indicated, non-attending students may use the following two texts together:

• M. Volpi, Freedom and Authority. The Classification of Forms of State and Forms of Government, Turin, Giappichelli, 2022

• F. Furlan, S. Gianello, M. Iacometti, C. Martinelli, G.E. Vigevani, M.P. Viviani Schlein, Comparative Constitutions, Turin, Giappichelli, 2022

TEACHERS AND EXAM BOARD

LESSONS

LESSONS START

Unless otherwise communicated (via AulaWeb and/or other official channels) the course will regularly begin in the first week of lessons of the second semester.

Class schedule

The timetable for this course is available here: Portale EasyAcademy

EXAMS

EXAM DESCRIPTION

The final exam will be oral.

ASSESSMENT METHODS

During the final exam, students will be asked 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 response in order to formulate more specific "sub-questions" or abandon the initial question in favor of a different question will not be considered as signals of the good or bad progress of the exam (much less as attempts to penalize or unduly facilitate the student being questioned), but are simply and exclusively methods to ascertain in the most correct way possible - in any case 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 reason critically 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 additional forms of direct or indirect verification of preparation during the lessons (classroom interventions, carrying out and presenting research and in-depth studies on agreed topics, etc.): all on a voluntary basis, therefore completely optional, and in a rewarding logic of incentive to actively participate in the lessons.

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

In any case, the possibility of asking questions on any part of the program and of defining the final grade on the basis of a balanced and considered evaluation of the overall preparation remains (very serious gaps or misunderstandings cannot, for example, be "compensated", in principle, by a good result in the exam on other parts of the program).

Students in possession of a regular disability certification or DSA diagnosis may request to avail themselves of compensatory measures during the exams (e.g. additional time, concept maps, changes in the written/oral modality), following the procedure indicated in the guidelines (p. 5) published here. In any case, for further information, it is possible to contact the Department's contact teacher at: Isa.Fanlo@unige.it