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. The process has been labeled the “judicialization of politics”. The course analyzes the traits of the phenomenon and its impact on the political system. Therefore, 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 prosecutors and to the institutional relationships between courts and the political environment. Different definitions of the judicial role are analyzed and their political consequences assessed. Specific cases, from different national and supranational judicial systems, are presented and discussed. Finally, the overall role of courts in different political systems is evaluated and future developments discussed.

The following subjects will be especially dealt with:

1. Introduction. The global expansion of judicial power: general traits

2. The process of adjudication: 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: the judiciary

6. Models of judicial decision-making and the judicial role

7. Theories of judicial power

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

9. Courts and politics in Western European civil law systems

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

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

12. 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.

‑ 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.

- Ingram M.C. (2015), Judicial Power in Latin America, in “Latin American Research Review”, Volume 50, Number 1, pp. 250-260.

- 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 Shadows of the Adversarial and Inquisitorial Categories, in M. D. Dubber and T. Hoernle (eds.), Handbook of Criminal Law, Oxford UP.

- 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

Students are expected to read the bibliography and actively participate to class discussions.

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 order to get a vote students must attend both exams.

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;

• 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 (3000-5000 words) must be e-mailed to the teacher before the end of the term.

Assessment methods

For students attending the written exams the 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%)

Teaching tools

Power point slides and recommended readings will be provided.

Office hours

See the website of Carlo Antonio Guarnieri Calbo Crotta