COMPARATIVE PUBLIC LAW

The course aims at providing the students with the main instruments for the analysis of the evolution of contemporary constitutionalism on a global scale through a comparative legal method. The participants in the course will learn how to manage traditional concepts – like constitutionalism, separation of powers, legal transplants and legal borrowing, federalism – and new legal concepts – like rule of law backsliding and democratic decay – featuring the study of comparative public law. They will be introduced to the main debates surrounding the research and the scholarship inquiry into this field, in particular the tension between universalism and context-based studies, the opportunity to apply normative notions such as “constitutionalism”, devised in the framework of the Western legal tradition, worldwide, and the use of foreign law by law-makers, judges, and constitution-making operators. The course will try to look at phenomena and public goods like the protection of fundamental rights, delegation of powers, and the entrenchment of rule of law principles in general, in a multilevel perspective, that is looking at them not in isolation, within each domestic jurisdiction, but in their interplay amongst levels of government (national, supranational and international). By doing so the course aims to train the students to better understand the comparative constitutional dimensions of political and societal developments that, by definition, take place in multilevel settings (e.g. constitutional transitions, conflicts of rights and amongst courts). In particular, the course aims to allow the students to: • understand the main legal problems and controversies characterizing comparative public law today; • distill similarities and differences amongst constitutional systems; • improve their ability to engage in a critical analysis of ongoing developments at international and domestic level by using legal and constitutional arguments; • be able to assess the pros and cons of the implementation and enforcement of the law in context, depending on the features of a specific legal system and in compliance with the supranational and the international constraints; • be able to actively interact with public and private institutions and interest groups on issues like institution and constitution-building, relationship between legislatures and courts, judicial politics, treatment of minorities, limits to the action of the executive branch.

Students are expected to be familiar with the basic concepts of Constitutional Law.

Knowledge and understanding -by the end of the course, students will be able to: • show an advanced knowledge of legal scholarship in the field of comparative public law, of the main schools of thoughts and research strands • distinguish different kinds of comparative methodologies and potential shortcomings in their application • detect legal problems connected to the enforcement of the law and propose concrete solutions to them based on a comparative methodology • understand the complexity of today’s legal systems, shaped by the interaction between the national (often even of a sub-national authorities), supranational and international levels of government. Applying knowledge and understanding - Students will be able to apply the knowledge acquired during this course for their future professional activities, in particular in the following domains and fields: • disentanglement of the legal aspects from the political, societal and economic aspects of international and domestic problems – e.g. constitutional implications of economic and political crises, treatment of vulnerable groups – also drawing on comparative legal research • writing commentaries, briefs or case notes for policy-makers, private institutions and interest groups on issues like institution and constitution-building; • based on the comparative legal methodology, offering ad hoc legal consultancy to NGOs active at international and at national level. Making judgements - Participants in the course will: • be put in a position to carry out autonomous research, collect scholarly and institutional materials, also using legal databases, and to elaborate the information from an independent and original perspective; • be equipped to provide a well-informed legal assessment of ongoing developments at national and international level; • be enabled to critically engage with the main theories and notions of comparative public law and to tailor their evaluation based on the country/countries under investigation. Communications Skills - From the very beginning of the course the instructor will devote specific attention to train the students to develop an appropriate use of the legal English and to compare the notions studied across the jurisdictions. Therefore, by the end of the course, the students will be able to: • be aware of the similarities and differences of specific concepts across the countries (e.g. the meaning and use of the rule of law, of Constitution, of ruling/judgment/judicial decision, of law and legislation) • manage the legal terminology to be used also for their subsequent professional paths; • express the notions learnt with sufficient clarity and in an understandable manner in an international context. Moreover, through class discussions every student will have the opportunity to speak in public and to be involved in debates on the topics studied. Learning skills - Through this course students will acquire the following skills: • ability to accomplish autonomous research and a doctrinal analysis of the different topics examined across time and space; • through the experiential learning provided in class they will be able to match theoretical concepts and notions with the empirical reality; • ability to detect and apply different kinds of comparative methodologies to a given case or assignment, depending on the underlying purposes (descriptive and/or normative) and tasks (professional, judicial, scholarly) • ability to manage the comparative legal methodology for the selection of different case studies in the Global North and South

The following topics will be covered through the course: 1. Methodology and legal families 2. Varieties of constitutionalism, forms of state and form of government - Historical evolution of constitutionalism and constitutionalism in context - Transformative constitutionalism, Islamic constitutionalism, socialist Constitutionalism, the Global South - Models of horizontal separation of powers 3. Democratic Procedures Electoral Procedures Referenda and Participatory Democracy tools Challenges to political rights in comparative and multilevel perspective 4. Constitutional Transitions - Constitution-making, institution building and transitional justice - Constitutional transplants and the migration of constitutional ideas - Secessions 5. Rule of Law under pressure at domestic level - Executive dominance and the marginalisation of parliamentary institutions - Judicial Independence and Fourth Branch Institutions - Minority Rights and constitutional adjudication 6. Rule of law under pressure in the European and global context - The EU’s response to the rule of law backsliding - The Council of Europe’s response to the rule of law backsliding - Authoritiarian international law? 7. National Federalism - US Federalism I: Philosophical Conceptions -US Federalism II: Dual and Cooperative - German Federalism: What is different? - Federalism in India and Africa 8. Supranational Federalism - EU Federalism I: Philosophical Conceptions - EU Federalism II: Dual and Cooperative Federalism? - The African Union and Beyond 9. Comparative International Law - What is Comparative International Law? - International Constitutional Law - International Democracy as a Solution - International Solidarity as a Solution 10. The Changing Separation of Powers From Old to New Separation of Powers Delegating Legislative Powers I Delegating Legislative Powers II 11. Foreign Affairs Powers - Foreign Affairs and Parliamentary Democracy I - Foreign Affairs and Parliamentary Democracy II - Foreign Affairs and Federalism

Selected readings, in particular from the Cambridge Companion to Comparative Constitutional Law (2019) and the Oxford Handbook of Comparative Constitutional Law

Instructors will use enquiry-based methodologies to make the most of the active and research-oriented participation of the students as a learning device. The sessions will consist of frontal lectures followed by a Q&A with the students, seminar-style teaching as well as on group working on case law and legal texts (selected by instructors) and on discussions of legal problems and challenges.

The assessment will be based on a final oral exam and on a handwritten mid-term test based on two open questions that can exonerate the students, if passed with a sufficient grade, on the relevant parts of the syllabus. Non-attending students will have to pass a comprehensive oral exam.

Having obtained at least 27 as the exam grade