74982 - Comparative Judicial Systems

Learning outcomes

At the end of the course students will be able to analyse with a comparative method the main elements of judicial systems, their interactions, to the role played by courts in the political system, including the analysis of individual rulings, and to assess the perspectives of change in different political contexts.

Course contents

Today, an increasing number of countries are confronting an unprecedented expansion of judicial power: more and more often decision‑making rights are transferred from the legislative and executive branches to the courts, a process labeled as the “judicialization of politics”. The course analyzes the traits of the phenomenon, its supporting conditions and its impact on the broader political system. Thus, the role of the judge in the process of adjudication and the whole structure of the judicial system are analyzed. Specific attention is devoted to the recruitment, training and independence of judges and public prosecutors and to the institutional relationships between courts and the political environment. Different conceptions of the judicial role are analyzed and their political consequences assessed. The overall role of courts in different political systems is evaluated and future developments discussed. Finally, specific cases, from different national – democratic and non-democratic - and supranational judicial systems are considered.

The following subjects will be especially dealt with:

1. Introduction. The global expansion of judicial power. The process of adjudication and the role of the judge in constitutional states

2. Assessing judicial power: the judicial system and its access

3. Assessing judicial power: the powers of the judge

4. Assessing judicial power: the judiciary. The judicial role

5. Theories of judicial power

6. Courts and politics in common law systems: USA and England.

7. Courts and politics in Western European civil law systems

8. Courts and politics in transitional and consolidating democracies: Eastern Europe

9. Courts and politics in transitional and consolidating democracies: Latin America

10. Courts and politics in totalitarian and authoritarian regimes

Readings/Bibliography

‑ Baum, L. (2006), Judges and Their Audiences, Princeton, Princeton UP, chap. 1.

- Bugaric B. and T. Ginsburg (2016), The Assault on Post-communist Courts, in “Journal of Democracy”, 27, n.3, pp. 69-82

- Cappelletti M. (1989), The Judicial Process in Comparative Perspective, Oxford, Oxford UP, especially pp. 115-149 .

- Dallara C. (2016), Ten years of EU-driven judicial reforms in Southeastern Europe: EU leverage and domestic factors at stake, in “Southeastern Europe”, XL, n. 2

- Ginsburg T. (2008), The Global Spread of Constitutional Review, in K.E. Wittington et al. (eds.), The Oxford Handbook of Law and Politics, Oxford UP, pp. 81-95.

Gonzalez-Ocantos, E. (2019), Courts in Latin America, in G. Prevost and J. Vandem (eds), The Oxford Encyclopedia of Latin American Politics, Oxford, Oxford UP.

‑ Guarnieri C. (2012), Judges, Their Careers and Independence, in D.S. Clark (ed.), Comparative Law and Society, Cheltenham, Elgar, pp. 193-215.

- Guarnieri C. and Pederzoli P. (2002), The Power of Judges, Oxford, Oxford UP, pp.98-120.

‑ Hirschl R. (2008), The Judicialization of Politics, in K.E. Wittington et al. (eds.), The Oxford Handbook of Law and Politics, Oxford UP, pp. 119‑141.

- Kapiszewski D., Kagan R. and G. Silverstein (eds.) (2013), Consequential Courts. Judicial Roles in Global perspectives, Cambridge, Cambridge UP, pp. 380-397.

‑ Kelemen D. (2012b), Eurolegalism and Democracy, JCMS 2012, Volume 50, Number S1, pp. 55-71.

- Langer M. (2014), The Long Shadow of the Adversarial and Inquisitorial Categories, in M.D. Dubber and T. Hoernle (eds.), Handbook of Criminal Law, Oxford, Oxford University Press

- Moustafa T. (2014), Law and Courts in Authoritarian Regimes, in “Annual Review in Law and Social Sciences”, X, pp. 281-299.

- Shapiro M. (2003), Judicial Review in Developed Democracies, in “Democratization”, X, n.4, pp. 7-26.

- Shapiro M, (2013), Judicial Independence: New Challenges in Established Nations, in “Indiana Journal of Global Legal Studies”, XX, n.1, pp. 253-277.

‑ Vanberg G. (2008), Establishing and Maintaining Judicial Independence, in K.E. Wittington et al. (eds.), The Oxford Handbook of Law and Politics, Oxford UP, pp. 99‑118.

Teaching methods

The teacher will introduce all the classes with a lecture, followed by discussion. Students are expected to read the bibliography (readings can be accessed through the Unibo Library System) and to actively participate to class discussions. In the second part of the course students can also orally present their papers.

Assessment methods

Two written exams will be held during the course – in the 6^th and 12^th weeks – consisting in some open questions dealing with the themes discussed in class in the previous weeks (1^st-5^th and 7^th-11^th). In order to get a final vote students must attend both exams.

Alternatively, students can prepare the analysis of a topic. They can choose:

• the analysis, in general terms, of a specific judicial system and its relationships with the political environment;

• or the analysis of a judicial decision – or a specific set of decisions - by pointing out its content, its impact on politics as well as the reactions of most significant political actors;

• they are also invited to comment on the significance of the case(s) analyzed for the relationships between courts and politics from a descriptive, explicative or normative point of view.

  The analysis will be first presented orally in the second part of the course. The written paper (4000-5000 words) must be e-mailed to the teacher before the end of the term.

  Students unwilling or unable to attend the exams in the previous two forms will be tested in ordinary oral and written exams (appelli) on the whole set recommended readings (see above).

 

For students attending written exams final assessment will be made according to:

• participation in class discussion (10%)

• first written exam (40%)

• second written exam (50%)

  For students presenting a paper:

• participation in class discussion (10%)

• oral presentation (25%)

• written paper (65%)

  Students attending the “ordinary” exams will be evaluated according to their performance in the written (65%) and oral (35%) parts of the exam.

Teaching tools

Power point slides will be provided.

Office hours

See the website of Carlo Antonio Guarnieri Calbo Crotta

See the website of Michele Sapignoli