Insegnamento a.a. 2017-2018

Classes: 23 (I sem.)

Instructors:
Class 23: JUSTIN ORLANDO FROSINI

Brexit, the Scottish and Catalan Questions, the secession/annexation of Crimea, the much debated referendum in Turkey in April 2017: these events and many more make one realise that there have been some dramatic constitutional developments and legal reforms in recent years.
Employing both the diachronic and synchronic methods of analysis typical of comparative constitutional law, this course addresses topics such as constitutional development and democratisation, constitution-making and constitutional amendment; forms of state and forms of government, federalism, regionalism and devolution, electoral systems and electoral management bodies, the role and functions of constitutional and supreme courts and the protection of fundamental rights and freedoms.

Introduction.

• What are the obstacles to be overcome when studying the legal system of one country in the language of another?
  
• What are the methods of classification used in comparative constitutional law?
• What are the constitutive elements of the State? How can we classify constitutions?
• What are constitutional statutes, ordinary statutes, law decrees, legislative decrees and delegated legislation?

Constitutional Amendment Processes.

• Should a constitution be easy or hard to amend?
• Are frequent amendments to a constitution a sign of strength or weakness in terms of constitutional development? Can constitutional amendments be ... unconstitutional?

Constitutional Development and Democratisation.

• What do we mean by ‘democratic transition and consolidation’ from a legal and political standpoint? What is the difference between a ‘formal’ and ‘substantive’ transition?

• What do the experiences across the globe tell us about how to draft and frame a constitution?
• What are the differences from a constitutional standpoint between democratic transitions today and those of Germany, Italy and Japan after WWII and Greece, Portugal and Spain in the 1970s?
  

Forms of State and Forms of Government.

• What do we mean in the context of comparative constitutional law with the expressions ‘form of state’ and ‘form of government’? Is there a preferred model of government and what are the advantages and drawbacks of ‘institutional transplanting’?
• What is preferable: a parliamentary, presidential or semi-presidential executive?

Electoral systems and Electoral Management Bodies.

• Should we give more emphasis to stability or to representation?
• What is preferable: First-Past-The-Post (FPTP), Two-Round Voting Systems (TRV), the Alternative Vote (AV) or systems of Proportional Representation (PR)?
• Who controls elections?

Federalism, Regionalism and Devolution.

• What are the distinguishing features between federalism, regionalism and devolution? After Brexit what is the future of the United Kingdom?

Constitutional and Supreme Courts: composition, role and functions.

• Who should be the guardian of the Constitution?
• Is it preferable to adopt a centralised or decentralised system of constitutional review? What role do constitutional courts play in transitions to democracy?
• Should constitutional courts be allowed to declare political parties unconstitutional?

Political, economic and civil rights.

• Should rights and freedoms be enumerated?
• How does one balance different rights and freedoms? What do we mean by multi-level protection of rights.

Students are expected to ensure regular class attendance and to actively participate in class discussions and teamwork.
tudents are required to orally present a case study (as part of a team) and sit a final in-class exam consisting of 40 multiple choice questions and 1 short essay.
Furthermore, students have the option of writing a take-home paper which must be handed in by the end of the semester break (length of up to 3000 words).
All classes are a combination of lectures and discussion.
The final mark is determined in the light of the group presentation (20%), the final in-class exam (70%), class attendance and class discussions (10%).
Please note that if a student chooses to also write the optional take-home paper then the final grade is calculated as follows: group presentation (20%), take-home exam (20%), final in-class exam (50%), class attendance and class discussions (10%).

• Excerpts from M. TUSHNET, Advanced Introduction to Comparative Constitutional Law, Edward Elgar, Cheltenham–Northampton, MA, 2014.
• J.O. FROSINI, Forms of State and Forms of Government, in G.F. FERRARI (editor), Introduction to Italian Public Law, Milano, Giuffré, 2008, made available by the instructor through the Blackboard platform.
  
• J.O. FROSINI, Constitutional Justice, in G.F. FERRARI (editor), Introduction to Italian Public Law, Milano, Giuffré, 2008, made available by the instructor through the Blackboard platform.
  
• J.O. FROSINI, The Italian Constitutional Court, in G.F. FERRARI (editor), Introduction to Italian Public Law, Milano, Giuffré, 2008, made available by the instructor through the Blackboard platform.
  
• J.O. FROSINI, Preamble, in R. GROTE, F. LACHENMANN, R. WOLFRUM (editors), The Max Planck Encyclopedia of Comparative Constitutional Law, MPECCoL, Oxford University Press Online Edition, 2017, made available by the instructor through the Blackboard platform.
  
• J.O. FROSINI, Constitutional Court of Italy, in R. GROTE, F. LACHENMANN, R. WOLFRUM (editors), The Max Planck Encyclopedia of Comparative Constitutional Law, MPECCoL, Oxford University Press Online Edition, 2017, made available by the instructor through the Blackboard platform.
• J.O. FROSINI, S. PENNICINO, Political Parties (ban on), in R. GROTE, F. LACHENMANN, R. WOLFRUM (editors), The Max Planck Encyclopedia of Comparative Constitutional Law, MPECCoL, Oxford University Press Online Edition, 2017, made available by the instructor through the Blackboard platform.
• Other readings, cases and material that are indicated during the course of the semester, made available by the instructor through the Blackboard platform.