B2319 - Common Law (Ius Commune) (Italian-French Double Degree in Law It)

Course contents

The course will be devoted to the analysis of the two main European unwritten legal systems - the ius commune and common law - comparing their main characteristics as models based on doctrinal interpretation and open to the influence of external sources.

The first module, taught by Prof. Alessia Legnani Annichini, aims primarily to reconstruct the functioning of the dialectic between ius commune and iura propria which characterised the legal system of continental Europe in the Middle Ages and early modern times, when the system entered into a crisis. Secondly, the course aims to show how even today, in some contexts (San Marino, Scotland, South Africa), judges are called upon to resolve disputes by resorting to a plurality of sources – including the ius commune – within the model of coexistence and co-applicability that characterised medieval and early modern Europe and which, to this day, is capable of offering correct and effective solutions.

The second module, taught by Prof. Lorenzo Maniscalco, deals with the common law system. The first part reconstructs the historical and doctrinal evolution of English law, focusing on the key principles that define its structure, such as the rule of binding precedent (stare decisis) and the creative role of the judge, and on the unique jurisdictional dualism that arose from the complex and dynamic interaction with the competing system of equity. The second part of the course will shift the focus to a comparison between the English legal tradition and that of the ius commune, both through a historical-comparative investigation and through an examination of the most recent case law, with the aim of identifying not only the areas of overlap and mutual influence but, more generally, the systemic flexibility with which unwritten legal systems construct their law through the reception and integration of institutions and solutions from different sources.

Readings/Bibliography

Exam preparation differs for attending and non-attending students.

Attending students

For attending students, the exam will focus exclusively on the topics covered during the course.

Attendance verification methods will be communicated during the first week of class.

Non-attending students

For non-attending students, the exam programme will be based on the compulsory study of the following texts:

1) A. Cavanna, Storia del diritto moderno in Europa, 1. Le fonti e il pensiero giuridico, Milan, Giuffrè, 1982, only for the following chapters and pages

- part I, chapter 2, pp. 33-65 and chapter 5, pp. 95-104

- part II, chapter 1, pp. 193-236; chapter 7, §§ 1-7, pp. 479-513; chapter 8, § 1, pp. 530-550; chapter 11, § 1, pp. 567-574; chapter 12, § 3, pp. 591-599.

2) A. Legnani Annichini, “Intolerabilis ergo error vitiat, quia conceptum mentis non exprimit”. The declinations of error-vice between gloss and commentary, in “Rivista di Storia del Diritto Italiano”, 94 (2021), pp. 39-93.

The essay will be made available to students on the course page (https://www.unibo.it/sitoweb/alessia.legnani/didattica/programma/2025/443405).

3) A. Legnani Annichini - Gianni Santucci, Lex generalis omnium. Un diritto del passato nel presente, Mucchi, Modena, 2023, only the following essays:

- A. Legnani Annichini, Argomentare secundum ius commune: alcuni esempi sammarinesi, pp. 63-78

- G. Santucci, Il valore normativo del diritto romano nei Mixed Legal Systems, pp. 81-106

- L. Maniscalco, The rule of the civil law was followed: l’uso del diritto romano nelle corti inglesi, pp. 107-132

The essays taken from the volume Lex generalis omnium. Un diritto del passato nel presente, Mucchi, Modena, 2023 are available on the publisher's website (https://mucchieditore.it/prodotto/lex-generalis-omnium-un-diritto-del-passato-nel-presente/)

4) M. Lupoi, Riflessioni comparatistiche sui trusts, in «Europa e Diritto Privato», 1, 1998, pp. 425-440 (è richiesto solo lo studio dei §§ 1-8 alle pp. 425-436).

The essay will be made available to students on the course page (https://www.unibo.it/sitoweb/alessia.legnani/didattica/programma/2025/443405)

Integrations for transfer students from other Degree Courses

The syllabus for the exam integrations to be taken by transfer students from other Courses is agreed with the individual student from time to time based on the syllabus already studied and the CFU/ECTS to be integrated.

Teaching methods

Teaching will take place in the form of lectures providing a systematic exposition of the topics covered in the Course.

As part of the lectures, students will be able to confront some contemporary case law dealing with ius commune and common law

All lectures will be delivered in person

Assessment methods

Please note that the lectures will be held in the I semester, so those who obtain a certificate of attendance for the current year will be able to take the exam from the first available exam date of the winter session.

The examination will be conducted orally.

The interview will cover the topics indicated in the "Course contents" section and will be aimed at assessing the student's achievement of the learning objectives:

- Know how the ius commune-iura propria dialectic works, including through this year’s thematic insights

- Reconstruct the historical evolution of English law and assimilate its doctrinal foundations

- Understand how unwritten legal systems evolve by integrating institutions and solutions from different sources

- Learn the importance of a historical education to sharpen the skills of future jurists

The evaluation of the test will be carried out taking into consideration

the knowledge of the course contents

the ability to make connections between the different parts of the program

the ability to develop critical arguments

the articulation and accuracy of the exposure

By way of example, the following criteria will be used to assess the final mark (that will be out of 30/30):

- 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.

Registration for the final exam must be done using the Almaesami application (https://almaesami.unibo.it/almaesami/welcome.htm ).

Thesis

The thesis will be assigned to students wishing to engage in an in-depth study of institutions, figures, or moments in the legal history of the ius commune or common law.

Please note that requests will not be accepted from those who declare that they are unable/willing to devote the time necessary to prepare their thesis to make it a constructive experience.

Teaching tools

The course is conducted entirely with the aid of computer support by means of a Microsoft Powerpoint presentation.

For better preparation, it is possible - indeed recommended - to download the teaching material that will be made available on the course lecturer's website (https://www.unibo.it/sitoweb/alessia.legnani/didattica/programma/2025/443405).

Students with learning disorders and/or temporary or permanent disabilities: please contact the office responsible (https://site.unibo.it/studenti-con-disabilita-e-dsa/en/for-students) as soon as possible so that they can propose acceptable adjustments. The request for adaptation must be submitted in advance (15 days before the exam date) to the lecturer, who will assess the appropriateness of the adjustments, taking into account the teaching objectives.

 

Office hours

See the website of Alessia Legnani Annichini

See the website of Lorenzo Maniscalco