DIRITTO PRIVATO COMPARATO
- Overview
- Assessment methods
- Learning objectives
- Contents
- Full programme
- Delivery method
- Teaching methods
- Contacts/Info
An appropriate knowledge of private law and constitutional law is required.
The learning assessment consists of an oral examination, with a final grade in thirtieths, covering the entire course programme.
Non-attending students are required to study the textbook indicated for the part concerning the syllabus and the recommended reading for the monographic part on India.
the monographic part on India.
The course aims to introduce students to the knowledge of the major
legal systems, with particular regard to the dichotomy civil law -
common law, through the acquisition of the basics of the method of
comparative analysis.
The experiences taken into consideration will be those most
illustrative of both traditions, namely the English and the
United States for common law systems, and the French, German and
for civil law systems.
The study of the different legal systems will be approached from a comparative-historical perspective, aimed at highlighting the interaction between the different formants of the
of law - doctrine, case law and legislation - in the creation of the
norms and the major classifications of private law, as well as the
differences existing in the formation of the jurist and a particular
mentality typical of common lawyers compared to that of civil lawyers.
Particular attention will also be paid to the current structure of the sources
of private law in the different legal systems taken into consideration and to the
phenomenon of the circulation of legal models.
Finally, the final part of the course will be devoted to the law of modern India,
taking into account the traditional substratum and the circulation of the
of common law.
The course presents 1. an introduction to comparative law methodology and its instruments of investigation, as well as legal systemology 2. a course of study that explains the system of sources in common law as well as in civil law, through a historical reconstruction of the main stages in the evolution of these systems, in order to understand their current differences. 3. an insight into how legal transplants take place
The course programme consists of the following modules:
A. Introduction to Legal Comparison
1. What it means to compare 2. Systemology: the mapping of the world's main legal systems and the criteria for defining them; dynamism and static nature of classifications: "legal systems never are, always become" 3. Methodology of comparison: 3.1 The analysis of formants 3.2. The circulation of legal models. 3.3. Analysis of the legal process 3.4. Law in the books v. law in action 4. Comparative method and interdisciplinarity: law and history, law and language, law and anthropology, law and literature
B. The common law 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.
C. 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 interstate relations: the Civil Rights Act of 1964
D. 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.
E. 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
The course adopts an interdisciplinary approach to the subject, involving students
1. in the critical analysis of some famous jurisprudential cases,
2. in the reading of some important literary texts, which highlight the figure of the jurist and the importance of the written law in different regulatory contexts,
3. in the viewing of some documentaries representing different visions and conceptions of law.
The course dovetails with two other initiatives of the Department.
1. Summer school:
Every year a Summer School in Comparative Law is organised with
professors from various European universities in order to conduct a comparative analysis of particular topics, such as comparative environmental law. The Summer School is
recognised 5 additional credits.
2. Law and cinema initiative:
Each year there is also a film festival (1 Wednesday evening per month) on legal topics that are presented by a film critic, jurists, as well as other
specialists in the field. Students who attend the film review and take a final interview on at least 5 films shown in class or during the film review will be awarded 3 credits.
Professors
Borrowers
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Degree course in: Law - Como