DIRITTO PRIVATO COMPARATO

Degree course: 
Corso di Long single cycle degree (5 years) in GIURISPRUDENZA
Academic year when starting the degree: 
2018/2019
Year: 
2
Academic year in which the course will be held: 
2019/2020
Course type: 
Compulsory subjects, characteristic of the class
Language: 
Italian
Credits: 
9
Period: 
Second semester
Standard lectures hours: 
55
Detail of lecture’s hours: 
Lesson (55 hours)
Requirements: 

An appropriate knowledge of private law and constitutional law is required.

Final Examination: 
Orale

Students may take the exam in English.
The learning assessment methods consist of an oral exam, with the final mark out of thirty, concerning the entire program of the course.

Non-attending students are required to study the text by Zweigert and Kötz, Introduction to Comparative Law, translated by Tony Weir, 3rd edition, 1998.

Assessment: 
Voto Finale

The aims of the course is to introduce the student to the great legal systems of the world, with particular regard to the civil law - common law dichotomy, taking advantage of classical comparative analysis methodology.
The legal systems that taken will be taken into consideration in order to illustrate both traditions, are the English and the US for common law systems, the French, German and Italian for the civil law systems.
The study of the different legal systems will be approached from an historical and comparative law point of view, aimed at highlighting the interaction between different legal formants: jurisprudence, case law and legislation in the creation and development of norms and broader classifications of private law.
The course will further investigate the specific differences existing in the education of lawyers of both legal traditions, as well as the development of a “mentalité” that reflect the particular way of reasoning that characterize common lawyers in comparison to civil lawyers.
Particular attention will also be given to the current structure of the sources of private law in the different legal systems taken into consideration and to the phenomenon of legal transplants.
The final part of the course will be devoted to the legal system of modern India, taking into account the traditional substrate and the circulation of the common law model.

The course presents 1. an introduction to the methodology of comparative law and its investigative tools, as well as to the various ways to classify the legal systems of the world 2. an analysis of the sources of law in common law as well as in civil law countries, through an historical reconstruction of the main phases of their historical evolution, in order to identify the current differences 3. a study of how legal transplants develop and take place

A. Introduction to comparative law
1. What is comparative law? 2. Legal families in the world: mapping the main world legal systems and the criteria for their definition; dynamism and static nature of classifications: “legal systems never are, always become” 3. Comparative law methodology: 3.1 Legal formants. 3.2. Legal transplants. 3.3. Legal process analysis 3.4. Law in the books v. law in action 4. Some practical examples in which the comparative methodology is applied
B. Civil law in Europe
1. The birth of the civil law and of the “university model” 2. The emergence of the jus commune 3. The era of the Great Courts 4. The age of codification 5. The Napoleonic civil code: its genesis and application 6. The Prussian Allgemeines Landrecht of 1794 7. The Historical School, the Pandectist School and the German Bürgerliches Gesetzuch of 1900 7. The Italian civil code of 1865: the reception of the French model in Italy 8. Legal transplants in Italy and the civil code of 1942. 9 The sources of private law in civil law systems.
C. The common law model in Europe
1. The birth of the common law. 1.1 The Norman Conquest of England. 1.2 Creation of the writs system. 1.3 The impossibility of a further extension of the writ system and the birth of the “actions on the case”. 1.4 “Remedies precede rights”: the inductive mentality of the English lawyer. 1.5 The creation of the Westminster Courts. 1.6 The Inns of Court as an alternative institution to universities.
2. The evolution of an Equity jurisdiction. 2.1 The new appeals to the King. 2.2 The role of the Chancellor. 2.3 “Equity follows the Law”: the relationships between Equity and common law. 2.4 Typical Equity Remedies. 2.5 The trust.
3. The education of English lawyers. 3.1 English legal literature. 3.2 Year Books and Reports. 3.3 The importance of William Blackstone and the success of his “Commentaries”.
4. The Judicature Acts 1873-75. 4.1 The unification of the two jurisdictions. 4.2 The abolition of the writ system. 4.3 The reorganization of the Courts system.
5. Sources of law in modern English law. 5.1 The doctrine of “stare decisis”. 5.2 The statutes. 5.3 The Law Commission. 5.4 The importance of legal scholarship and of universities.
D. European private law in fieri
1. the theory of the gradual convergence between civil law systems and common law systems in Europe 2. The problems of harmonization of European private law
E. The Common law in the United States
1. Suitability of the common law system in the first colonies. 1.1 Divergences and convergences with respect to the English matrix. 1.2 The federal structure. 1.3 The written Constitution. 1.4 The judicial review.
2. The American lawyer. 2.1 The “Langdell Reform” and the birth of the American law schools. 2.2 The case-method. 2.3 Legal scholars and the importance of law reviews: the “right to privacy” and the seminal article by Warren and Brandeis.
3. The legislation. 3.1 The welfare state. 3.2 The so-called "orgy of statute making". 3.3 A common law for the age of statutes. 3.4 The current structure of sources of law.
4. Racial discrimination from the Civil War to present times 4.1. The 1865 amendments to the Constitution 4.2. The principle of equality before the judges: Plessy v. Ferguson and the principle "Equal but separate". 4.3. Brown v. Topeka Board of Education and the overcoming of the old principles 4.4. Towards a substantial principle of equality in the inter-state relations: the Civil Rights Act of 1964
C. The common law in India
1. Hindu law and Vedic tradition. The sources of law. The laws of Manu. The caste system 1.1. The Islamic invasion of India 1.2. The domination of the British Raj and the common in India 1.3. Gandhi and non-violence principle 1.4. The 1950 Constitution 1.5. The principle of equality today 1.6. English as the language of Indian law.

If the student wants to take the exam in English, we recommend the text by Zweigert and Kötz, Introduction to Comparative Law, translated by Tony Weir, 3rd edition, 1998.

Convenzionale

The course adopts an interdisciplinary approach to the subject, involving students:
1. in the critical analysis of some famous cases,
2. in reading some important literary texts, which highlight the role of lawyers and the importance of the written law in different regulatory contexts,
3. in the presentation of some movies that represent different visions and conceptions of law.

The course is combined with two other initiatives of the Department.
1. Summer school:
Every year a Summer School in Comparative Law is organized with professors from American and European universities, in order to conduct a comparative analysis on particular topics, such as those pertaining to comparative environmental law. 5 additional credits are awarded for the Summer School.
2. Law and cinema initiative:
Every year a film festival takes place on legal topics that are presented by a film critic, lawyers, as well as other specialists in the sector. Students who attend the film festival and hold a final interview on at least 5 films shown in class or during the event will receive 3 credits. In the academic year 2019/2020 the film festival will be dedicated to "The disobedients - Women who had the courage to say no NO in history".

Professors