B4117 - SEMINAR RULE OF LAW: FOUNDATIONS AND APPLICATIONS

Learning outcomes

The course will consist of two modules. The first module will analyze the philosophical and conceptual facets of the rule of law as a political ideal that lies at the core of contemporary constitutional systems. First, the module will analyze the different elements that define the rule of law in conceptual terms and the standards of legitimacy that this ideal grounds in normative terms. From this perspective, the module will address the formal and substantive conceptions of the rule of law and will shed light on the different principles that can play a role in justifying and shaping the related constraints on the exercise of power(s) in the public sphere. Based on this analysis, the module will examine the terms in which the rule of law has been understood and realized in different legal cultures and will introduce some of the most controversial issues concerning the institutional fulfilment of this ideal. To this end, the analysis will dwell on relevant practical cases. The second module of the course will inquire into the applicative dimension of the rule of law and the core set of legal institutions that it grounds, based on case studies. To this end, the inquiry will rely on selected decisions of constitutional and/or supreme courts that aim at applying the ideal of the rule of law or that, conversely, depart from it. In such terms, the course will shed light on whether - and how - the rule of law changes to adapt to the applicative context, assessing its role at the supranational level and in the regulation of digital platforms. Finally, the course will assess if, and how, it is possible to devise a global rule of law, i.e. a rule of law operating at a transnational level, beyond national borders.

Course contents

The course will consist of two parts.

The first part will analyze the philosophical and conceptual facets of the rule of law as a political ideal that lies at the core of contemporary constitutional systems. First, the unit will analyze the different elements that define the rule of law in conceptual terms and the standards of legitimacy that this ideal grounds in normative terms. From this perspective, the unit will address the formal and substantive conceptions of the rule of law and will shed light on the different principles that can play a role in justifying and shaping the related constraints on the exercise of power(s) in the public sphere. Based on this analysis, the unit will examine the terms in which the rule of law has been understood and realized in different legal cultures and will introduce some of the most controversial issues concerning the institutional fulfilment of this ideal. To this end, the analysis will dwell on relevant practical cases.

The second part of the course will inquire into the applicative dimension of the rule of law and the core set of legal institutions that it grounds, based on case studies. To this end, the inquiry will rely on selected decisions of constitutional and/or supreme courts that aim at applying the ideal of the rule of law or that, conversely, depart from it. In such terms, this inquiry will shed light on whether - and how - the rule of law changes to adapt to the applicative context, assessing its role at the supranational level and in the regulation of digital platforms. Finally, the second part of the course will assess if, and how, it is possible to devise a global rule of law, i.e. a rule of law operating at a transnational level, beyond national borders.

Readings/Bibliography

Reading list for attending students enrolled in the Laurea Magistrale:

Compulsory:

• J. Waldron, "The Rule of Law", The Stanford Encyclopedia of Philosophy (Summer 2020 Edition), Edward N. Zalta (ed.). (16 pp.)
• P. Costa, D. Zolo (eds.) The Rule of Law, Springer, 2007: pp. 73- 138.
• Craig, P., 1997, “Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework” Public Law, (1997): 467–87.
• Raz, J.“The Rule of Law and its Virtue”, in The Authority of Law, Oxford University Press, 1979.
• R. Dworkin, “Political Judges and the Rule of Law”, in A Matter of Principle, Harvard University Press, 1985 pp. 9–32.
• R. Gargarella, “Constitutionalism and the Rule of Law”. In: Meierhenrich J, Loughlin M, eds. The Cambridge Companion to the Rule of Law. Cambridge Companions to Law. Cambridge: Cambridge University Press; 2021:425-442.
• M. Krygier, “Democracy and the Rule of Law”. In: Meierhenrich J, Loughlin M, eds. The Cambridge Companion to the Rule of Law. Cambridge Companions to Law. Cambridge: Cambridge University Press; 2021:406-424.
• S. Lewis, “Precedent and the Rule of Law”, Oxford Journal of Legal Studies, Volume 41, Issue 4, Winter 2021, Pages 873–898
• Nickel, J. W. (2007). “Due Process Rights and Terrorist Emergencies”. Eur. J. Legal Stud., 1, 243.
• S. Chesterman, “An International Rule of Law?” American Journal of Comparative Law, 56(2008): 331–61.
• Morrone, “Constitutional Adjudication and the Principle of Reasonableness”, in G. Bongiovanni, G. Sartor, C. Valentini, (eds), Reasonableness and Law, Springer 2009, 215–241;
• T. Konstadinides, “The Rule of Law as the Constitutional Foundation of the General Principles of EU Law”, in Research Handbook on General Principles in EU Law Constructing Legal Orders in Europe, Edward Elgar, 2022, 287-307.
• Kampourakis, S. Taekema & A. Arcuri, Reappropriating the Rule of Law: between Constituting and Limiting Private Power, in Jurisprudence, 2022, 1-19;
• O. Pollicino, The Quadrangular Shape of the Geometry of Digital Power(s) and the Move Towards a Procedural Digital Constitutionalism, in Eur. L. J., 2023, 10-23.
• E. Smith, The Rule of Law Doctrine of the Politburo, in The China Journal, no. 79/2017, 40-61.

 

Optional readings:

• G. J. Postema, “Moral Foundations”, in Law's Rule: The Nature, Value, and Viability of the Rule of Law. Oxford University Press. (2022), pp. 79-96.

• J. Waldron, “The Rule of Law and the Role of Courts”. Global Constitutionalism, 10(1), 91-105.
• G. Piccirilli, The ‘Taricco Saga’: the Italian Constitutional Court Continues its European Journey, in Eur. Const. Law Rev.,14, 2018, 814–833;

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For students not attending classes, all readings are compulsory:

• J. Waldron, "The Rule of Law", The Stanford Encyclopedia of Philosophy (Summer 2020 Edition), Edward N. Zalta (ed.). (16 pp.)
• P. Costa, D. Zolo (eds.) The Rule of Law, Springer, 2007: pp. 73- 138.
• Craig, P., 1997, “Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework” Public Law, (1997): 467–87.
• Raz, J.“The Rule of Law and its Virtue”, in The Authority of Law, Oxford University Press, 1979.
• R. Dworkin, “Political Judges and the Rule of Law”, in A Matter of Principle, Harvard University Press, 1985 pp. 9–32.
• R. Gargarella, “Constitutionalism and the Rule of Law”. In: Meierhenrich J, Loughlin M, eds. The Cambridge Companion to the Rule of Law. Cambridge Companions to Law. Cambridge: Cambridge University Press; 2021:425-442.
• M. Krygier, “Democracy and the Rule of Law”. In: Meierhenrich J, Loughlin M, eds. The Cambridge Companion to the Rule of Law. Cambridge Companions to Law. Cambridge: Cambridge University Press; 2021:406-424.
• S. Lewis, “Precedent and the Rule of Law”, Oxford Journal of Legal Studies, Volume 41, Issue 4, Winter 2021, Pages 873–898
• Nickel, J. W. (2007). “Due Process Rights and Terrorist Emergencies”. Eur. J. Legal Stud., 1, 243.
• S. Chesterman, “An International Rule of Law?” American Journal of Comparative Law, 56(2008): 331–61.
• Morrone, “Constitutional Adjudication and the Principle of Reasonableness”, in G. Bongiovanni, G. Sartor, C. Valentini, (eds), Reasonableness and Law, Springer 2009, 215–241;
• T. Konstadinides, “The Rule of Law as the Constitutional Foundation of the General Principles of EU Law”, in Research Handbook on General Principles in EU Law Constructing Legal Orders in Europe, Edward Elgar, 2022, 287-307.
• Kampourakis, S. Taekema & A. Arcuri, Reappropriating the Rule of Law: between Constituting and Limiting Private Power, in Jurisprudence, 2022, 1-19;
• O. Pollicino, The Quadrangular Shape of the Geometry of Digital Power(s) and the Move Towards a Procedural Digital Constitutionalism, in Eur. L. J., 2023, 10-23.
• E. Smith, The Rule of Law Doctrine of the Politburo, in The China Journal, no. 79/2017, 40-61.

• G. J. Postema, “Moral Foundations”, in Law's Rule: The Nature, Value, and Viability of the Rule of Law. Oxford University Press. (2022), pp. 79-96.

• J. Waldron, “The Rule of Law and the Role of Courts”. Global Constitutionalism, 10(1), 91-105.
• G. Piccirilli, The ‘Taricco Saga’: the Italian Constitutional Court Continues its European Journey, in Eur. Const. Law Rev.,14, 2018, 814–833;

 

Additional reading:

P. Costa, D. Zolo (eds.) The Rule of Law, Springer, 2007, le pp. 3-71.

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Reading list for students enrolled in the LEGS programme:

• Raz, J.“The Rule of Law and its Virtue”, in The Authority of Law, Oxford University Press, 1979.
• R. Dworkin, “Political Judges and the Rule of Law”, in A Matter of Principle, Harvard University Press, 1985 pp. 9–32.
• R. Gargarella, “Constitutionalism and the Rule of Law”. In: Meierhenrich J, Loughlin M, eds. The Cambridge Companion to the Rule of Law. Cambridge Companions to Law. Cambridge: Cambridge University Press; 2021, pp. 425-442.
• M. Krygier, “Democracy and the Rule of Law”. In: Meierhenrich J, Loughlin M, eds. The Cambridge Companion to the Rule of Law. Cambridge Companions to Law. Cambridge: Cambridge University Press; 2021, pp. 406-424.
• J. Waldron, “The Rule of Law and the Role of Courts”. Global Constitutionalism, 10(1), pp. 91-105.
• S. Lewis, “Precedent and the Rule of Law”, Oxford Journal of Legal Studies, Volume 41, Issue 4, Winter 2021, pp. 873–898
• Nickel, J. W. (2007). “Due Process Rights and Terrorist Emergencies”. Eur. J. Legal Stud., 1, 243.
• S. Chesterman, “An International Rule of Law?” American Journal of Comparative Law, 56(2008): 331–61.
• T. Konstadinides, “The Rule of Law as the Constitutional Foundation of the General Principles of EU Law”, in Research Handbook on General Principles in EU Law Constructing Legal Orders in Europe, Edward Elgar, 2022, 287-307.
• Kampourakis, S. Taekema & A. Arcuri, Reappropriating the Rule of Law: between Constituting and Limiting Private Power, in Jurisprudence, 2022, 1-19;
• E. Smith, The Rule of Law Doctrine of the Politburo, in The China Journal, no. 79/2017, 40-61.

Teaching methods

The lectures will cover course contents and include the discussion and critical analysis of selected readings and judicial decisions in class. Further information about the course will be provided in class and published online: https://www.unibo.it/sitoweb/c.valentini and https://www.unibo.it/sitoweb/corrado.caruso

Assessment methods

The evaluation will be based on a written exam testing the students' understanding of the theoretical and applicative issues addressed during the course. Hence, the exam will not necessarily dwell on specific textual passages but will test the students' ability to develop a critical analysis of the issues discussed during the course. Normally, the written examination consists of a series of questions, in connection with the readings required for the course, and the final grade is the result of an average of the results of the answers to these questions.

Final grading criteria:

- sufficient or barely sufficient knowledge on the programme, limited reasoning ability, some difficulties in using technical and legal language → 18-21/30;

- fairly good knowledge of the programme, adequate critical reasoning ability, sound use of technical and legal language → 22-25/30;

- comprehensive knowledge of the programme, notable reasoning ability, good command of technical and legal language → 26-29/30;

- extensive knowledge of the programme, very good reasoning ability, and ability to fully master technical-legal language → 30-30L/30.

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For LEGS students, enrolled in the seminar (B4117), the exam will consist of a written test, requiring to answer an open-ended question or to comment an excerpt from the required readings.

Teaching tools

Slides and handouts summarizing the course contents; discussion and critical analysis of selected readings and judicial decisions in class; use of online platforms to access and exchange information about the course.

All information relative to the course, along with any course material, will be available online on the Virtuale webpage of the course as well as on the 'course units' section of the personal webpages of Professor Valentini https://www.unibo.it/sitoweb/c.valentini and Prof. Caruso https://www.unibo.it/sitoweb/corrado.caruso

Office hours

See the website of Chiara Valentini

See the website of Corrado Caruso