LFU:online

The purpose of the course is to offer students
(i) an introduction to comparative legal systems of sources of law, with a special attention on the distinctive features of the English common law and the European continental tradition of codified law (civil law);
(ii) an introduction to comparative legal methodology in public law;
(iii) a comparative analysis on protection of fundamental rights in the European system(s) of constitutional pluralism.

Reference to the European system(s) of constitutional pluralism entails taking into account the interactive context of national domestic jurisdictions, of the international (European Court of Human Rights) and to the supranational (Court of Justice of the European Union) protection of fundamental rights as a field of application of the comparative method.

Following a general introduction, classes will initially deal with

(a) the distinction of systems of sources of law as experienced in time and space (civil law, common law, socialist law, conventional law, customary law, religious law), with emphasis on common law (born in England and exported throughout  the Commonwealth) and civil law (with origins in Roman law and further shaped through a process of national codification, present also in North and South America, in former French, Portuguese and Spanish colonies, and allegedly in China and other former colonies in Asia). Common law and civil law (and, formerly, socialist law) make up the Western  (and European) legal tradition and co-exist in the experience in international and supranational protection of fundamental rights.

(b) Classes will then deal with methodological issues in comparative public law, going through the necessary steps that will allow knowledge and understanding of a method of analysis and legal reasoning that is becoming more and more relevant in the legal professions. A ruling by the Spanish Constitutional Tribunal will be indicated as a paradigmatic case of adjudication in a setting of constitutional pluralism.

(c) A third and wider stage of the course will explore comparatively the field of protection of fundamental rights through the analysis of judicial decisions of international (ECtHR) and supranational (CJEU) European case-law. Students are welcome to share the presentation of cases with critical comments of the own.

Classes are a means for critical learning and teaching will therefore rely on a critical approach, with the purpose to train students to see and explain problems, to analyse similarities and differences, and to understand their respective rationale.
Classes are based on a combination of lectures and of group discussion introduced by students and they are meant to be as interactive as students will be willing to be.

Students are always welcome to ask questions, make comments and to suggest links between and among topics. Questions, comments and suggestions are preferably asked in class (rather than through individual emails), so that all students benefit both from questions and answers.

Most if not all of us in class are presumably not English native speakers and share the same difficulties at expressing our legal reasoning in a foreign language. However, the chance of practicing this foreign language in our professional legal field is to be most welcome by all.

The final exam will be written, in the fom of a take-home exam: students are given a topic and shall elaborate their own not-less-than 4000 words paper to be delivered through email before a set deadline. Showing to have the basic information is taken for granted for law students at UIBK and is therefore not sufficient for passing the exam.
Students are expected to be able to carry on legal arguments on the given topic employing the legal tools provided by reading materials and class work.

Grades are related not to the quantity of information exhibited but to the quality of personal legal reasoning.

Suggested readings:
1: Basic infomation on comparative public law
A. W. Heringa, Constitutions Compared, An Introduction to Comparative Constitutional Law, 6^th edition, Eleven, 2021.

2: Legal reasoning on costitutional pluralism and judicial protection of fundamental rights
O. M. Arnardottir and A. Buyse (editors), Shifting Centres of Gravity in Human Rights Protection. Rethinking relations between the ECHR, EU, and national legal orders. Routledge, 2020 in paperback . Chapters 1, 2, 3, 5, 7, 11

3: The outlines of classes will be made available on the web (OLAT)
4: Further reading materials (essays, judicial decisions and comments) may and will be provided following the development of classes.

Students interested in meeting the professor are kindly requested to contact him via email:
roberto.toniatti@uibk.ac.at
roberto.toniatti@unitn.it