100L - CONSTITUTIONAL LAW
Academic Year 2021/2022
Free text for the University
ROBERTO MARIA CHERCHI (Tit.)
- Teaching style
- Lingua Insegnamento
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5 objectives will be pursued:
1) Knowledge and understanding. Students must know the Italian Constitution and all the other constitutional institutes and notions indicated in the program (see Contents) with a level of understanding and elaboration which permit them to elaborate original ideas, also in a context of interactive research, aimed to a practical use. The dimension of “knowledge” will be pursued not through a notionistic approach, at the contrary the students will be stimulated to develop critical capabilities.
2) Applying knowledge and understanding. Together with theoretical notions, the course pursues practical aspects aimed to implement the legal “know-how” of students such as, for example: solving conflicts between the sources of the legal system, knowing how to recognize if a norm is valid or not, knowing how to interpret the Constitutions, classify a judgment of the Constitutional Court according to the different typologies. Students will be trained to problem solving in new subject of the law, including an interdisciplinary approach.
3) Making judgements. Together with theoretical and practical training, the students will be trained in the ethical and social dimensions of the role of the jurist. Students will be, for example, invited to reflect on: the meaning of law as a daily experience in our life; look at the law not only as a technical tool, but also as science of just reasoning aimed to guarantee the values of coexistence within the society and to search Justice. Students will be trained not to adhere passively to the contents of legal norms, but to be able to criticize their contents, and they will be trained on the value of Constitutionalism as a part of law which limit power and its abuses.
4) Communication skills. Together with theoretical, practical, and ethical training, the dimension of communication will be cared. Students must learn to divide and articulate the expression of what they learned and what they think through points, and steps logically connected. Those abilities will be developed during the hours of interactive seminars in which students can participate actively and have to talk imagining to have as public both jurists and lay-people.
5) Learning skills. Moving from the famous Dante verse “non fa scienza sanza lo ritener l’aver inteso” (understanding without reminding does not produce knowledge), students must learn to memorize and interiorize some notions of constitutional law for the rest of their life. Given the phenomenon of “interrupted thought” caused by over-techno stimulation, the professor will provide some practical instruction on how to study in and self-managed and independent way, learning how to do a correct time-management, and implementing the capacity to prepare resume and outlines of what studies. The professor will stress which are the unforgottable part of the program, both during the classes and in the written program.
1) General knowledge, acquired through the media or high-school, of the main political institutions of the Italian Republic (important)
2) Sensitivity towards ethic and political issues (important)
3) Stayin updated about the main debates of the Italian and European society, through the reading of the press and news (important)
4) Discipline, curiosity, critical spirit (important)
5) Capability of reading and critical analysis of a legal text (useful)
6) Knowledge of Italian and European history (useful)
7) It is not necessary to do other exams before Constitutional law.
The course is divided in 4 parts (modules).
I General Notions of Constitutional law, Constitutional Organs and Institutions
II The Sources of the legal system
III The Constitutional Court
IV The V Fundamental Rights
I MODULE. GENERAL NOTIONS
1. What is the law? What is constitutional law?
2. The norm. Generality and abstractness of the norm. Validity, efficacy, effectiveness. Types of norms. Difference between written norm and its interpretation.
3. The interpretation (literal, historic, sistematic, evolutive etc.)
4. Constitution and constitutionalism. Types of Constitutions.
5. The State. The 3 constitutive elements: people, territory, sovereignty
6. The forms of state, and the forms of government.
7. The legal system and the plurality of legal systems.
8. Democracy and political rapresentation. Direct and representative Democracy
Exercise (only for students who attend classes): the Barbagian Code in comparison with the Italian legal system.
Exercise (only for students who attend classes): how do we interpret constitutional norms?
IV MODULE. THE LEGAL SOURCES
1. Concept of legal sources.
2. Types of legal sources and their classification.
3. The pyramid of the legal sources.
• Supreme principle and fundamental rights of the Constitution (hard core of the Constitution)
• European sources
• Constitutional sources
• International sources
• Reinforced law
• Primary sources (law, statutes). Regional sources
• Secondary sources
• Tertiary sources
• Costumary sources
4. The antinomies between the sources of law
• Balance between rights
Exercise: how to solve the conflicts between norms? (very important)
III MODULE. Constitutional organ and the 3 powers of the state
What is a constitutional organ? What is a power of the state (Legislative, Executive, Judiciary)?
1. The electorate. Composition and functions. Popular sovereignty and political parties
2. The Parlament. Composition and functions. The internal organization. The status of MP.
3. The Government. Composition and functions. The formation and the crisis.
4. The President of the Republic. Composition and functions.
IV The constitutional Court
5. The Constitutional Court. Composition and functions.
6. Model of constitutional justice.
a. The function of invalidate laws
b. The function of testing if a referendum is admissable
c. The function of solving conflicts between the powers of the state
d. The function of judging the President of the Republic.
7. The Judiciary.
Constitutional principle that rule the Judiciary
Ordinary and special judges
The Superior Council of the Judiciary
Exercise: analysis and classification of judgements by the Italian Constitutional Court
V MODULE. Fundamental rights.
The constitutional guarantees for fundamental rights: reserve of law and reserve at the judiciary
The 4 generations of rights: civil rights; political rights; social rights; new rights.
The principle of equality
The rights in the Italian Constitution: artt. 13, 14, 15, 16, 17, 18, 19, 21, 24, 25,
27, 30, 32, 40, 41 Cost.
Exercise: Analisis and classification of the fundamental rights.
The course combines three methodologies: a) Italian-European continental, based on a theoretical approach; b) US socratic method, and anglosaxon case-law approach; c) interactive learning.
During the academic year 2020/2021, students will have to choose if attending in class or on line. The choice will be made at the beginnning of the academic years. If necessary, students will alternate attendence in class and online.
The course lasts 96 hours of wich 72 of Classes (2 hours each); the remaining 24 hours will be dedicated to laboratories and seminars over arguments faced in class.
Those the kind of classes that will be developed:
Traditional classes with the support of the power point (the slides will be public and free accessible by all students)
Participated classes with laboratories and exercises over arguments faced in class.
Classes will be conducted through a constant reference to the text of the Constitution, that must be taken at class everyday.
SEMINARS This year the seminar has as subject the reading and discussioni of materials related to the ordinary classes, paying close attention to the system of the sources of law and, in particular, to administrative regulations.
Verification of learning
ORAL EXAM. The evaluation of the students is done during a public oral exam, the student will have to answer to questions on all the subjects treated in the book and during the course (for students who attended it).
Oral exams generally consist of 34 questions. The first on the legal sources system; the second and the third on the 5 constitutional organs and the judiciary and on fundamental rights;
In this context the student may be asked to solve a conflict between norms, and to apply the theory of interpretation to a norm of the Constitution.
The students must demonstrate to have a complete knowledge of all the program. Is not admissable study the program partially, ignoring some of its parts. It is preferable have a sufficient knowledge of all the main institute (listed in the contents) than knowing only few part ecellently and ignoring others, as in this case the exam will not be passed.
In the evalution of the student, at the oral exam, there sill be considered achievements and attitudes such as: 1) the coherence and completeness of the given answers; 2) the ability of the student to present his/her knowledge in a mnemonic way, showing an interconnected vision of the all program; 3) the capacity of paying attention to the practical issues; 4) the ability of expressing the acquired notions in a legal language.
SELF-EVALUATION DURING CLASSES. at the end of each Module the professor circulate a set of questions asking the students to self evaluate themselves providing the correct answers.
GROUP ACTIVITIES DURING THE SEMINARS. During the seminar “Being a jurist today” working groups will be formed; they have to solve legal cases assigend by the professor and expose their conclusion to the class.
The final score will be a minimum of 18 and a maximum of 30.
The judgement is formulated according to the following criteria:
a) Knowledge of the program
b) Logic in explaining the contents
c) Precision in legal language
To pass the exam the students have to demonstrate a sufficient knowledge on the legal source system, the 5 constitutional organs, and fundamental law; a basic knowledge on the general notions of constitutional law. Students must be able to solve a legal source conflict, to interpret a legal text, to advise a citizen on his/her fundamental rights.
To reach the score of summa cun laude a student has to demonstrate an excellent knowledge of all the program, and a capability to connect different institutes.
R. BIN, G. PITRUZZELLA, Diritto costituzionale, ultimate edition.
It is mandatory to read the Italian Constitution.
The students of the past years can choose between the actual textbook and the ones of their year of attendance.
ON PROGRAM. The program is identical in the contents between students who can attend or not classes, but different in the way the contents are transmitted. The students who can attend class learn in a more dynamic and interactive way, with practical exercise which improve the learning by doing process. The classes will be supported by power point slide which will be available to all students (also those who cannot attend classes). All the material (with the exception of the hand book) will be provided by myself on my personal unica page (google: Roberto Cherchi people unica). Students should keep a folder of the exercises during along the classes as they will constitute object of the oral exam.
ON LEGAL LANGUAGE. Studying law is like to study a foreign language. It is important to learn technical words and their legal meaning that may differ from daily Italian language. Each studenti s invited to fill a dictionary with the main definition while studying.
ON QUESTIONS DURING CLASSES. Not be shy and ask every questions you want.
During your preparation of the exam, please follow the news and read newspaper as we will address several contemporary issues.