CONSTITUTIONAL LAW 2
Instructional goals
The Course aims to guarantee to students a deep knowledge of the tools and techniques that constitutional law provides for the protection of fundamental rights. In particular, the course aims to deepen the knowledge of the content and structure of the constitutional provisions concerning fundamental rights and of the case law related to their application, also in the new context represented by the European Integration and by the international guarantees of fundamental rights. The course also aims to make students aware of problematic issues related to the protection of fundamental rights through the instruments of constitutional justice, with particular reference to conflicts between different rights and tensions with the democratic principle.
Intended learning outcomes
- Knowledge and ability to develop a critical thought on the forms and tools of protection of rights in contemporary legal systems.
- Knowledge and ability to find and systematically read the relevant regulatory sources and jurisprudential paths relevant to the protection of fundamental rights.
- Knowledge of the role that jurisdictions play at the various levels in terms of guaranteeing rights.
- Ability to develop adequate argumentative strategies for balancing judgments between rights.
- Ability to increase the communication skills (written and oral) typical of the legal professions.
Course Contents
The course is dedicated to the deepening of fundamental rights and legal instruments for their protection in the internal constitutional order and in the perspective of their "multilevel" guarantee.
The course is divided into two parts.
The first part (weeks I-IX), with traditional classes method on campus, is dedicated to the analysis of three thematic blocks: 1) Birth, historical evolution and general framework of fundamental rights in modern constitutionalism; 2) The international and supranational protection of rights and the problems of the "multilevel" guarantee and of the "dialogue" between the different jurisdictions. 3) Theoretical profiles of the interpretation and application of the constitutional formulas that recognize and guarantee rights. Also as part of the first part of the course, weekly online classes will be devoted to the preparation of the tools necessary to carry out the second part.
The second part of the course (weeks X-XII), with the seminar method of the simulated constitutional process, is dedicated to the treatment of some concrete cases relating to judgments currently pending before the Constitutional Court on fundamental rights.
Reference Books
Teaching Methods
Traditional classes during the first part of the Course (weeks I-IX), and case law approach during the final part (weeks X-XII).
Assessment Method
- Oral final examination.
During the oral final exam the student will be required to show that he/she knows and understands notions and principles of constitutional law concerning the protection of fundamental rights and that he/she is able to apply them to practical cases. The student is expected to be able to independently analyse sources and relevant theories of constitutional law concerning the protection of fundamental rights and to use the appropriate technical and legal vocabulary, thus proving that he/she has acquired the study method and the learning ability for carrying on, also independently, further study of the matter.
The following evaluation criteria will be taken into account to assign the final grade, expressed in thirtieths:
- knowledge and understanding of the notions and principles of the matter and ability to apply them to concrete cases (65%);
- appropriate use of the technical and legal vocabulary, ability to analyse and evaluate relevant sources and acquisition of the study method, activities during the course (35%).
Learning gaps concerning one or more notions or principles will lead to an insufficient evaluation, even in presence of a basic knowledge of the matter.
It is possible to monitor and verify the preparation of the course participants at mid-term, on the understanding that the grade will only be awarded at the end of the final exam, which will take place at the end of the course, according to the methods and evaluation criteria specified above in detail.
Thesis assignment criteria
The teacher is available to agree on the topic, the objectives and the working method for the final paper for each request.
Week 1
- Course presentation: objectives, content, and methods.
- Clarification of terminology: natural rights, human rights, fundamental rights, inviolable rights.
- Origins and models for guaranteeing fundamental rights.
- The origins of modern constitutionalism and the role of fundamental rights.
- The British experience.
- The North American model.
- The French model.
Week 2
- 19th Century liberal constitutionalism: the example of the Statuto albertino.
- The role and guarantee of rights in the “statutory pact”.
- The crisis of the liberal state and the “matrices” 20th Century constitutionalism.
Week 3
- Constitutions after the Second World War.
- Fundamental rights and the democratic principle.
- Rights of liberty and social rights.
- The rigidity of the Constitution as a guarantee of fundamental rights.
- The role of the courts in guaranteeing fundamental rights.
- The cultural and ideological pluralism of political forces in the Constituent Assembly.
- Reflections of pluralism on the interpretation of constitutional formulae on rights.
Week 4
- The protection of rights in the ECHR system.
- The Council of Europe and the objectives of the European Convention on Human Rights.
- The formulations of the Convention.
- The system of protection of rights between the obligations of the signatory States and the ECHR.
- The place of the ECHR standards in the system of sources: the relationship with domestic legislative and constitutional sources.
- Case-law developments before and after the 2007 “twin” judgments.
- The dialogue between common courts, the ECHR and the Constitutional Court.
Week 5
- Protection of rights in the European Union legal order.
- Origins and evolution of the protection of fundamental rights in the European legal order.
- The sources: the weight and scope of the common constitutional traditions, the ECHR and the Charter of Fundamental Rights.
- The courts: the path towards judicial protection of rights and the role of the Court of Justice.
Week 6
- The relationship between domestic and supranational sources: the "limitations of sovereignty" and the stages of the dialogue between the Constitutional Court and the Court of Justice.
- The critical elements of Constitutional Court Judgment No. 170 of 1984: subsequent developments, art. 117, co. 1, Cost., and current approaches.
- The “dialogue” between the Courts and the doctrine of “double jeopardy”.
Week 7
What kind of norms espress constitutional provisions on fundamental rights? (I)
- Fundamental rights as rules and as principles.
- Constitutional Court Judgment No. 20 of 2019 as an example of how the Constitutional Court decides on fundamental rights.
- The model of the rules. Subsumption. The rules as suboptimal norms.
- The characteristics of fundamental rights considered as rules.
- The principles model, from Ronald Dworkin to Robert Alexy. The balancing technique.
- The structure of balancing: a) the identification of the conflicting principles; b) the identification of the legal positions prima facie protected; c) the "topography of the conflict"; d) the suitability test; e) the necessity test; f) the proportionality test in the strict sense; g) the identification of the legal positions protected all things considered.
- Provision, norm and interpretation.
- How is it established whether a constitutional provision expresses a rule or a principle? The role of provisions, the role of case law and the role of value judgments.
Week 8
What kind of norms espress constitutional provisions on fundamental rights? (II)
- Balancing of principles and balancing of values.
- The role of value judgements in balancing operations.
- Definitional balancing and ad hoc balancing.
- Mobile hierarchies and stable hierarchies.
- The essential core of fundamental rights and its relationship with balancing operations: a) absolute theories; b) relative theories.
- The metaphor of rights as “umbrellas”.
- The Hohfeldian positions, i.e. the elementary legal positions within a so-called “macro-right”.
Week 9
The balancing of rights in argumentative social practice.
- Paradigmatic cases, concept and conceptions. Reasonable inclusive conceptions according to Rawls.
- The use of conceptions to assess the weight of principles in balancing judgements.
- Deep interpretive disagreements in the interpretation of fundamental rights.
- Law as interpretative social practice
- The identification of the “conceptions” of a principle in legal theory as an argumentative social practice.
- An example: the ruling of the Court of Cassation on the “Englaro case”.
Week 10
Simulated constitutional process 1: discussion by lawyers and decision of the case in chambers.
Week 11
Simulated constitutional process 2: discussion by lawyers and decision of the case in chambers.
Week 12
Simulated constitutional process 3: discussion by lawyers and decision of the case in chambers.