74982 - Comparative Judicial Systems

Course Unit Page

SDGs

This teaching activity contributes to the achievement of the Sustainable Development Goals of the UN 2030 Agenda.

Peace, justice and strong institutions

Academic Year 2021/2022

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 course is taught according to the “Blended” model

The course is organized with a part of lectures taught online on MS TEAMS (first module: 20 hours) and another taught in presence (second module: 20 hours). The number of students allowed in class is determined on the basis of class capacity and by the health and safety provisions dealing with the pandemic emergency. Should more students are willing to attend classes in presence than those permitted by the rules, a system of shifts will be organized so to allow all students to participate. Regardless of the health-related conditions and the specific organization of the course, students will be able to follow the lessons of the entire course remotely on MS TEAMS.

 

The following subjects will be especially dealt with:

First module (C. Guarnieri):

  1. Introduction. The global expansion of judicial power.

  2. The process of adjudication and the role of the judge in constitutional states.

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

  4. Assessing judicial power: the powers of the judge.

  5. Assessing judicial power: judicial independence and culture.

Second module (M. Sapignoli):

6. Theories of judicial power.

7. Courts and politics in common law systems: United States and Britain.

8. Courts and politics in civil law systems: Germany, France and Italy.

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

10. Courts and politics in non-democracies.

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

- Gee, G. (2017), Rethinking the Lord Chancellor’s role in judicial appointments, in “Legal Ethics”, vol. 20, n.1, pp. 4-20.

- 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.

- Gonzales-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. and Pederzoli P. (2020), The Judicial System. The Administration and Politics of Justice, Cheltenham, Edward Elgar.

‑ 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.

- Kagan, R. in Kapiszewski D., Kagan R. and G. Silverstein (eds.) (2013), Consequential Courts. Judicial Roles in Global perspectives, Cambridge, Cambridge UP, pp. 199-232.

- Kovacs, K. and Scheppele, K.L. (2018), The Fragility of an Independent Judiciary: Lessons from Hungary and Poland – and the European Union, in “ Communist and Post-Communist Studies”, vol. 51, pp. 189–200.

- 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, (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.

Wittreck, F. (2018), German Judicial Self-Government – Institutions and Constraints, in “German Law Journal”, vol. 19, pp. 1931-1950.

Teaching methods

The teacher will introduce all the classes with a lecture, followed by discussion. Students are expected to read the recommended 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

The exam can be attended in one of the following ways:

  1. Two written exams will be held during the course – aproximately at the middle and at the end – consisting in some (3-5) open questions dealing with the themes - and the recommended readings - already discussed in class. 20 minutes will be allocated for each question. In order to get a final vote students must attend both exams. In this case the final assessment will be made according to the following criteria:
    • participation in class discussion (10%)
    • first written exam (40%)
    • second written exam (50%)
  2. Alternatively, students can prepare the analysis of a case. 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;
    • students are also invited to comment on the significance of the case(s) for the relationships between courts and politics considered from a descriptive, explicative or normative point of view.
    • The analysis will be first presented orally in the second part of the course, more or less in the week (7th -10th) in which the subject will be dealt with. A maximum of five presentations per week is foreseen. The written paper (3000-5000 words) must be e-mailed to the teacher before January 5th, 2022.
    • Students must notify the teacher the subject of their presentation by October 31st, 2021.
    • In this case the final assessment will be made according to the following criteria:
      • participation in class discussion (10%)
      • ·oral presentation (25%)
      • written paper (65%)
  3. Students unwilling or unable to attend the exams in the previous two ways will be tested in ordinary oral and written exams (appelli) – to be held after the course - on the above-mentioned set of readings.  

Teaching tools

The course is also offered on www.federica.eu

Office hours

See the website of Carlo Antonio Guarnieri Calbo Crotta

See the website of Michele Sapignoli