COMPARATIVE PUBLIC LAW
Learning outcomes of the course unit
The course aims to provide methodological tools and theoretical foundations of comparative law through, first of all, the understanding and analysis of topics such as the notion, the manner and purpose of public/constitutional comparative law. Particular attention will be dedicated to the study of some specific aspects that characterize the evolution of the forms of state and the forms of government in the comparative analysis. Part of the course will be reserved for the examination of the different models and protection techniques of fundamental rights in comparative law, also through the study of the jurisprudence, also in an European constitutional perspective (European Courts of Justice and European Courts of human rights).
With reference to the knowledge and understanding, the course aims to provide students with deep knowledge about the relation between theory and research in the juridical comparative law and with the ability to develop new topic in the comparative law field through the study of the jurisprudence and legal models.
In relation to the applying knowledge and understanding, the course will enable students to understand the different legal phenomena and to analyze specific cases, in order to verify the possible application of the learned theoretical assumptions in relation to new questions and challenges (such as the protection of fundamental rights).
With regard to making judgements, the course aims to develop in students the ability to integrate the gained knowledge through the comparative legal analysis, in order to assess individually the applications and the legal implications of cases or judgments.
The goal of the course is to develop the ability to communicate appropriately and comprehensively, using a correct language (technical legal terms), paying special attention to the development of interpretative processes structured on the basis of theoretical principles of public / constitutional comparative law.
Finally, with regard to learning skills, the course will be organized in order to allow students to acquire the theoretical and methodological tools of comparative law in order to be able to analyze on their own the case studies and to do research.
In order to be admitted to the Comparative public law exam, it’s necessary to have already passed the examinations of Principles of Private Law, Principles of Roman Law, Constitutional Law.
Course contents summary
The use of comparison in the public law/constitutional law between science and method. The families of the legal systems. Forms of state: notions and classifications. Forms of government and their peculiar characters. Comparative constitutional justice among centralized or decentralized model of judicial review. Access to the Constitutional Courts: direct appeal, direct appeal of the citizens; the recurso de amparo and the protection of the rights. The “rights-outside” the national Constitutions: European integration through the rights. The new contents and the new techniques of protection of fundamental rights between the evolution of the constitutional languages and the orientations of the judges and the Constitutional Courts. The role of judges (especially constitutional ones) in the configuration of rights and in the development and management of new protection techniques of rights.
The special part of the course will be dedicated to digital privacy. In particular, it will illustrate how the European Union adopted of Regulation 2016/679 on the protection of personal data, in order to understand its real problems, also in light of national models as well as to understand the differences between the European models and the American one. Following suit, a specific part will be dedicated to the analysis of some problematic aspects linked to the Regulation (and from the integrative discipline). In relation to these relevant topics, a series of Seminars will also be organized (the seminars could also be held entirely online, according to the evolution of the pandemic emergency), focusing on the peculiar protection attributed to ‘sensitive data’, such as biometric and genetic data and underlining the issues and challenges related to the use of digital and innovative technologies. Based on these seminars, attending students will be asked to actively participate through a deep analysis, study and discussion on a selected case law as well as on relevant current legal issues.
T. E. FROSINI, Diritto Pubblico Comparato. Le democrazie stabilizzate, Il Mulino, 2019 (full text).
L. SCAFFARDI (a cura di), I "profili del diritto". Regole, rischi e opportunità nel'era digitale, Giappichelli, 2018 (full text).
For the final exam it is required a deep knowledge of major European Countries’ Constitutions. In this regard, we recommend: G. CERRINA, E. FROSINI, A. TORRE, Codice delle Costituzioni, Cedam, 2015.
The course is divided into lectures (48 hours), according to the indications of the University related to the health emergency. Moments of interactive participation of students will be integrated into frontal lessons, through the analysis and discussion of relevant case studies. In particular, during the course, Seminars will be held dealing with a relevant and current topic: the protection of ‘sensitive data’ in front of the massive employment of new technologies. This topic will be studied from different points of view and with a specific focus on biometric and genetic data as well as on the profound problems related to the use of AITs and algorithms. The Seminars will analyze both the difficulties and attempts made by the national and supranational legislator and the recent case-law. Attending students will be then asked to deeply study the selected case-law and to discussi it, by critically highlighting the experts’ positions as well as the open challenges.
Assessment methods and criteria
Final assessment (vote on thirty) is conducted through oral exam. The knowledge and understanding will be assessed through three questions in order to test the knowledge of the theoretical concepts of comparative law.
The applying knowledge and understanding applied will be assessed by inviting students to discuss and analyze case studies and judgments.
The making judgements will be assessed by inviting the student to formulate personal considerations on specific case studies or judgments.
The communication skills will be assessed by evaluating the use of the technical and legal language and the ability to provide appropriate definitions.
The learning skills will be assessed by evaluating the acquired knowledge and the ability to make judgments. Attending students – those who participated to the organized Seminars and actively partecipated to the research and discussion activities – are asked to study the selected topics analyzed during the lessons as well as the case-law and specific materials discussed during the course.
In the persistence of the health emergency and depending on its evolution, the oral exam may take place or in the presence or in mixed mode (i.e. in the presence, but with the possibility of sustaining it even on line for students who request it), or only online for everyone. Of the chosen modality, information will be promptly given on the esse3 system in advance of the exam.