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Le persone
Student guide Faculty of Law A.Y. 2010/11
Comparative Legal Systems
Aim of the course
The course is designed to introduce students to the major current legal systems, with special reference to the dichotomy between civil law and common law. The experiences considered will be those most typical of both traditions, namely the English and US experience for common law systems and the French, German and Italian experience for civil law systems. The various legal systems will be studied in a historical/comparative light, in order to demonstrate firstly the interaction between the various components (jurisprudence, case law and legislation) in creating the law and the major private law classifications, and secondly the differences in training of lawyers, and the typical approach of common lawyers compared with civil lawyers. Particular attention will also be devoted to the current system of sources of private law in the various legal systems considered, and the phenomenon of circulation of legal models.
Syllabus
1. The birth of common law.
1.1 The Norman Conquest of England.
1.2 The creation of the system of writs.
1.3 Prohibition on the creation of new writs and the introduction of actions on the case.
1.4 Remedies precede rights: the inductive approach of the English lawyer.
1.5 The creation of the Courts of Westminster.
1.6 The Inns of Court as an alternative to universities.
2. The development of an Equity jurisdiction.
2.1 The new appeals to the King.
2.2 The figure of the Chancellor.
2.3 Equity follows the Law: the relations between Equity and common law.
2.4 The remedies typical of Equity.
2.5 The trust.
3. The training of English lawyers.
3.1 English legal literature.
3.2 Year Books and Reports.
3.3 Blackstone and the success of the Commentaries.
4. The Judicature Acts 1873-75.
4.1 The unification of the two jurisdictions.
4.2 The abolition of writs.
4.3 The reorganisation of the Court system.
5. The system of sources of current English law.
5.1 Binding precedents.
5.2 Legislation.
5.3 The Law Commission.
5.4 Jurisprudence and universities.
6. The advent of common law in the USA.
6.1 Differences from and similarities to the English system.
6.2 The federal structure.
6.3 The written Constitution.
6.4 Judicial review.
7. The American lawyer.
7.1 The Langdell reform and the creation of the great American universities.
7.2 The case-method.
7.3 Jurisprudence as an opinion-leading component of the legal system: the example of data protection.
8. Legislation.
8.1 The Welfare State.
8.2 The "orgy of statute-making".
8.3 A common law for the age of statutes.
8.4 The current system of sources.
9. Introduction to civil law.
9.1 The renaissance of legal studies in Mediaeval Europe.
9.2 Universities as the centre of lawyers' training.
9.3 The phenomenon of reception of Roman Law.
9.4 The early codes: the Prussian ALR and the Austrian ABGB.
10. France.
10.1 Subdivision into two areas of influence.
10.2 Coutumes.
10.3 Ordonnances.
10.4 The major schools of thought that paved the way for codification.
10.5 The 1804 Code Civil.
10.6 Interpretation of the code and new claims.
10.7 The current situation.
11. Germany.
11.1 The phenomenon of reception in Germany.
11.2 The Usus modernus pandectarum.
11.3 The Historical School and study of the Pandects.
11.4 The code of 1900: the BGB.
11.5 The current system.
12. Italy.
12.1 The influence of the French and German models in Italy.
12.2 The phenomenon of circulation of models in Italy.
12.3 The code of 1865.
12.4 The recodification of 1942.
13. Circulation of models.
13.1 Reasons.
13.2 The variables of the phenomenon.
13.3 Circulation among European and non-European countries.
During the course, a seminar will be held on the style of judgments and the use of precedents in the various legal systems. The materials needed to prepare for the seminar will be distributed during the course.
1.1 The Norman Conquest of England.
1.2 The creation of the system of writs.
1.3 Prohibition on the creation of new writs and the introduction of actions on the case.
1.4 Remedies precede rights: the inductive approach of the English lawyer.
1.5 The creation of the Courts of Westminster.
1.6 The Inns of Court as an alternative to universities.
2. The development of an Equity jurisdiction.
2.1 The new appeals to the King.
2.2 The figure of the Chancellor.
2.3 Equity follows the Law: the relations between Equity and common law.
2.4 The remedies typical of Equity.
2.5 The trust.
3. The training of English lawyers.
3.1 English legal literature.
3.2 Year Books and Reports.
3.3 Blackstone and the success of the Commentaries.
4. The Judicature Acts 1873-75.
4.1 The unification of the two jurisdictions.
4.2 The abolition of writs.
4.3 The reorganisation of the Court system.
5. The system of sources of current English law.
5.1 Binding precedents.
5.2 Legislation.
5.3 The Law Commission.
5.4 Jurisprudence and universities.
6. The advent of common law in the USA.
6.1 Differences from and similarities to the English system.
6.2 The federal structure.
6.3 The written Constitution.
6.4 Judicial review.
7. The American lawyer.
7.1 The Langdell reform and the creation of the great American universities.
7.2 The case-method.
7.3 Jurisprudence as an opinion-leading component of the legal system: the example of data protection.
8. Legislation.
8.1 The Welfare State.
8.2 The "orgy of statute-making".
8.3 A common law for the age of statutes.
8.4 The current system of sources.
9. Introduction to civil law.
9.1 The renaissance of legal studies in Mediaeval Europe.
9.2 Universities as the centre of lawyers' training.
9.3 The phenomenon of reception of Roman Law.
9.4 The early codes: the Prussian ALR and the Austrian ABGB.
10. France.
10.1 Subdivision into two areas of influence.
10.2 Coutumes.
10.3 Ordonnances.
10.4 The major schools of thought that paved the way for codification.
10.5 The 1804 Code Civil.
10.6 Interpretation of the code and new claims.
10.7 The current situation.
11. Germany.
11.1 The phenomenon of reception in Germany.
11.2 The Usus modernus pandectarum.
11.3 The Historical School and study of the Pandects.
11.4 The code of 1900: the BGB.
11.5 The current system.
12. Italy.
12.1 The influence of the French and German models in Italy.
12.2 The phenomenon of circulation of models in Italy.
12.3 The code of 1865.
12.4 The recodification of 1942.
13. Circulation of models.
13.1 Reasons.
13.2 The variables of the phenomenon.
13.3 Circulation among European and non-European countries.
During the course, a seminar will be held on the style of judgments and the use of precedents in the various legal systems. The materials needed to prepare for the seminar will be distributed during the course.
Examinations
An oral exam on the subjects covered in lectures will be held at the end of the course.
Reading list
In addition to the reading material recommended during the course, students are advised to study one of the following textbooks to revise for the exam:
Gambaro, A., Sacco, R., Sistemi giuridici comparati, UTET, Turin, 1998.
David, R., Jauffret-Spinosi, C., I grandi sistemi giuridici contemporanei, Sacco, R., (ed.), Cedam, Padua, 1994, 4th ed.
Zweigert, K., Kötz, H., Introduzione al Diritto Comparato, vol. I, I Principi fondamentali, Giuffrè, Milan, 1992.
Gambaro, A., Sacco, R., Sistemi giuridici comparati, UTET, Turin, 1998.
David, R., Jauffret-Spinosi, C., I grandi sistemi giuridici contemporanei, Sacco, R., (ed.), Cedam, Padua, 1994, 4th ed.
Zweigert, K., Kötz, H., Introduzione al Diritto Comparato, vol. I, I Principi fondamentali, Giuffrè, Milan, 1992.