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, forms of state, forms of government – and new legal concepts – like legal transplants and borrowing, rule of law backsliding and democratic decay, European and international constitutionalism – 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, separation 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, constitutional adjudication, 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 from the perspective of the legal families (e.g. common law, civil law, Islamic law etc.), of the protection of the Constitution, and of the vertical and horizontal separation of powers; • 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 Public Law.

Students are expected to be familiar with the basic concepts of Public 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 a 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 presentations and group work every student will have the opportunity to speak in public and to be involved in discussions to the topics studied on a regular basis. 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 by means of case law and legal texts’ analysis, simulation and discussions in class, their capacity to match theoretical concepts and notions with the empirical reality will be enhanced; • ability to detect and apply different kinds of comparative methodologies to a given case or assignment, depending on the underlying purposes (analytical and/or normative) and tasks (professional, judicial, scholarly) • ability to manage the comparative legal methodology for the selection and the investigation of different case studies in the Global North and South

The course will focus on some of the main issues and problems of contemporary constitutionalism. After a methodological introduction, it will start with an overview of the constitutional cycles. In this context, the key features of the contemporary constitutional State will be discussed, with particular reference to the instruments that ensure constitutional effectiveness and entrenchment, such as constitutional rigidity, reinforced amendment processes and constitutional review of legislation. This will also entail a reflection on the extent to which these classic notions can be referred to countries outside the Western legal tradition, as to include Africa and Asia. After an investigation into the instruments for the enforcement of the horizontal separation of powers, mechanisms of checks and balances, of the main forms of Government and of their practical evolution, the analysis will move to the vertical separation of powers and to federalizing processes. The study of the federal or quasi-federal arrangements will encompass countries like the US, Canada, Germany, India, the UK, Spain and the EU itself and will also include the treatment of the controversial issue of the separatist claims, through the analysis of secessionist attempts and of the constitutional implications of Brexit. The vertical separation of powers will also entail the analysis of the mechanisms of interaction between domestic and supranational/international sources of the law and courts, looking in particular at the European and the Latin America contexts and at the cases of conflicts of rights and of courts that the supranational governance may trigger. The course will then deal, from a multilevel perspective, with the topic of constitutional transitions, with reference to the European context (i.e. referred to the countries of the Council of Europe) and the to the MENA region, after the Arab Spring. Linked to this is the analysis of the current problematic trends of rule of law backsliding and democratic decay affecting several constitutional democracies nowadays, within and beyond Europe (e.g. Brazil, Chile, Hungary, Poland, Turkey).

Selected chapters from: - R. Masterman and R. Schütze, The Cambridge Companion to Comparative Constitutional Law (CUP, 2019). - M. Rosenfeld and A. Sajò, The Oxford Handbook of Comparative Constitutional Law (OUP, 2012). Readings are available via LUISS on-line subscriptions. Other articles and papers in the syllabus will be uploaded on the course’s web page (LUISS learn). Please, note that judgments and the legal texts discussed in class and available on Luiss learn will have to be prepared for the oral exam

Instructors will use enquiry-based methodologies to make the most of the active and research-oriented participation of the students as learning devices. Online sessions will consist of frontal lectures followed by a Q&A with the students. The sessions on campus, instead, will be based on both lectures and, depending on the theme, on group working on case law and legal texts (selected by instructors) and on discussions of legal problems and challenges

The assessment for this course is articulated as follows: - 20% of the grade will be based on a test based on multiple choice questions - 30% of the grade will be based on the answer to an open question - 20% of the grade will be based on a project work prepared in group in partnership with Cassa Depositi e Prestiti (grade assigned collectively in this case) - 30% of the grade will be based on the final oral exam Please, note that the written tests does not exonerate students from the preparation on those parts of the syllabus for the oral exam. Students not attending the course will be asked to deliver a paper on one of the rulings/legal texts selected for the course of their choice and available on Luiss learn (at least 20 days before the appello). The paper should be no longer than 3000 words bibliography and footnotes excluded. It will count for 40% of the final grade. The remaining 60% will depend on the performance at the oral exam. In addition to the readings to be prepared according to the syllabus, non-attending students shall also prepare to deal with on one of the following books of their choice (all available through remote access via LUISS library): - Anderson and Choudry, Territory and Power in Constitutional Transitions, OUP, 2019, https://oxford.universitypressscholarship.com/view/10.1093/oso/9780198836544.001.0001/oso-9780198836544 - Sajò, Ruling by Cheating. Governance in Illiberal Democracy, CUP, 2021, https://www.cambridge.org/core/books/ruling-by-cheating/25F75BCA4BD6E2585ACEB4F94E2669AE - Suteu, Eternity Clauses in Democratic Constitutionalism, OUP, 2021, https://global.oup.com/academic/product/eternity-clauses-in-democratic-constitutionalism-9780198858867?lang=en&cc=ro - Spigno, Scotti, Lima Penalva da Silva (eds), The Rights of Women in Comparative Constitutional Law, Routledge, 2023, https://www.taylorfrancis.com/books/edit/10.4324/9781003349488/rights-women-comparative-constitutional-law-irene-spigno-valentina-rita-scotti-jana%C3%ADna-lima-penalva-da-silva

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