Transnational Constitution-Making
A.Y. 2025/2026
Learning objectives
The state of emergency represents one of the most significant challenges to democratic constitutionalism. The course - taking into account the transnational legal order theoretical framework - aims to provide the students with the knowledge and the methodology necessary to understand, from a comparative perspective, the differences among the states of emergency established at constitutional level and in other sources of law.
Expected learning outcomes
At the end of the course the students are expected to be able to: analyse, from a comparative perspective, the various sources of law which regulate the states of emergency - distinguish the different models of accomodations thereof - apply, mastering a legal-constitutional lexicon, the classification concerning states of emergency to a new case - compare, in a critical manner, the law in the book and the law in action to the same.
Lesson period: Second trimester
Assessment methods: Esame
Assessment result: voto verbalizzato in trentesimi
Single course
This course cannot be attended as a single course. Please check our list of single courses to find the ones available for enrolment.
Course syllabus and organization
Single session
Responsible
Lesson period
Second trimester
Course syllabus
Attending students
First Module:
What is a Constitution? Constituent power, sources of constitutional law and transnational legal orders. Amending power and protection of the Constitution in time of crisis. Militant democracy and its critics. Introduction to the taxonomy of constitutional emergency provisions from a comparative perspective.
Second Module:
The praxis of application of emergencies clauses in time of peace and in time of war: the derogation model (common law system); the normalization of emergency (permanent state of emergency, and recent evolutions); the president's rule (USA, and models inspired to American system); the evolution of the emergency powers theory between legislative and constitutional model (the Latin American experience). Analysis of single cases - even in workshops and interactive lessons in class.
Non attending students
First Module:
What is a Constitution? Constituent power, sources of constitutional law and transnational legal orders. Amending power and protection of the Constitution in time of crisis. Militant democracy and its critics. Introduction to the taxonomy of constitutional emergency provisions from a comparative perspective.
Second Module:
The praxis of application of emergencies clauses in time of peace and in time of war (analysis of the cases of UK, USA, Canada). The war on terror and the permanent state of emergency. The international emergence (the pandemic era).
First Module:
What is a Constitution? Constituent power, sources of constitutional law and transnational legal orders. Amending power and protection of the Constitution in time of crisis. Militant democracy and its critics. Introduction to the taxonomy of constitutional emergency provisions from a comparative perspective.
Second Module:
The praxis of application of emergencies clauses in time of peace and in time of war: the derogation model (common law system); the normalization of emergency (permanent state of emergency, and recent evolutions); the president's rule (USA, and models inspired to American system); the evolution of the emergency powers theory between legislative and constitutional model (the Latin American experience). Analysis of single cases - even in workshops and interactive lessons in class.
Non attending students
First Module:
What is a Constitution? Constituent power, sources of constitutional law and transnational legal orders. Amending power and protection of the Constitution in time of crisis. Militant democracy and its critics. Introduction to the taxonomy of constitutional emergency provisions from a comparative perspective.
Second Module:
The praxis of application of emergencies clauses in time of peace and in time of war (analysis of the cases of UK, USA, Canada). The war on terror and the permanent state of emergency. The international emergence (the pandemic era).
Teaching methods
The learning objectives and the expected learning outcomes will be achieved through:
a) frontal lessons (70% of the lessons) with the aim to introduce the students to the methodologies of comparative constitutional law, to the distinction between constituent power and amending power, to the content of constitutional emergency provisions in different countries and the taxonomy thereof.
b) direct involvement of attending students (30% of the lessons) in the analysis and discussion of different states of emergency in time of peace and in time of war with the aim to develop their comparative approach and their communication skills.
In order to be considered as an attending student, the minimum attendance threshold is set at 2/3 of classes + 1 class.
a) frontal lessons (70% of the lessons) with the aim to introduce the students to the methodologies of comparative constitutional law, to the distinction between constituent power and amending power, to the content of constitutional emergency provisions in different countries and the taxonomy thereof.
b) direct involvement of attending students (30% of the lessons) in the analysis and discussion of different states of emergency in time of peace and in time of war with the aim to develop their comparative approach and their communication skills.
In order to be considered as an attending student, the minimum attendance threshold is set at 2/3 of classes + 1 class.
Teaching Resources
Attending students
First Module:
T. Groppi, A. Simoncini, Foundations of Italian Public Law, Giappichelli, 2023, 9-29, 101-112, 85-98, 31-43, 149-151;
J. W. Müller, M. Schor, and G. Jacobsohn, Militant Democracy and Constitutional Identity, in G. Jacobsohn and M. Schor (eds.), Comparative Constitutional Theory, Elgar Publishing, 2018, pp. 415-435;
O. Gross, F. Ní Aoláin, Models of accommodation, in O. Gross, F. Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice, Cambridge University Press; 2006, pp. 17-29, 35-46 and 66-85;
C. Bjørnskov, S. Voigt, The Architecture of Emergency Constitutions, in C. Bjørnskov, S. Voigt, State of Emergency: An Economic Analysis. Cambridge University Press, 2024, pp. 101-111;
Documents and materials available on MyAriel.
Second Module:
O. Gross, F. Ní Aoláin, Models of Accomodation, in O. Gross, F. Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice, Cambridge University Press, 2009, pp. 30-34, 46-65.
Materials and documents uploaded in MyAriel site.
Non attending students
First Module:
T. Groppi, A. Simoncini, Foundations of Italian Public Law, Giappichelli, 2023, 9-29, 101-112, 85-98, 31-43, 149-151;
J. W. Müller, M. Schor, and G. Jacobsohn, Militant Democracy and Constitutional Identity, in G. Jacobsohn and M. Schor (eds.), Comparative Constitutional Theory, Elgar Publishing, 2018, pp. 415-435;
O. Gross, F. Ní Aoláin, Models of accommodation, in O. Gross, F. Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice, Cambridge University Press; 2006, pp. 17-29, 35-45, 66-85;
C. Bjørnskov, S. Voigt, The Architecture of Emergency Constitutions, in C. Bjørnskov, S. Voigt, State of
Emergency: An Economic Analysis. Cambridge University Press, 2024, pp. 101-111;
A. Greene, The Ideal State of Emergency, in A. Greene, Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis, Oxford: Hart Publishing, 2018, pp. 1-32.
Second Module:
O. Gross, F. Ní Aoláin, Models of Accomodation, in O. Gross, F. Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice, Cambridge University Press, 2009, pp. 30-34, 46-65;
T. Poole, Constitutional Exceptionalism and the Common Law, in International Journal of Constitutional Law, 7, 2, 2009, 247-274;
K. Lane Scheppele, North American Emergencies: The Use of Emergency Powers in Canada and the United States, in International Journal of Constitutional Law, 4, 2, 2006, 213-243;
T. Ginsburg, M. Versteeg, The Bound Executive: Emergency Powers during the Pandemic, in International Journal of Constitutional Law, 19, 5, 2021, 1498-1535;
C. Bjørnskov, S. Voigt, When does Terror induce a State of Emergency? And what are the Effects?, in C. Bjørnskov, S. Voigt, State of Emergency: An Economic Analysis. Cambridge University Press, 2024, pp.131-189.
First Module:
T. Groppi, A. Simoncini, Foundations of Italian Public Law, Giappichelli, 2023, 9-29, 101-112, 85-98, 31-43, 149-151;
J. W. Müller, M. Schor, and G. Jacobsohn, Militant Democracy and Constitutional Identity, in G. Jacobsohn and M. Schor (eds.), Comparative Constitutional Theory, Elgar Publishing, 2018, pp. 415-435;
O. Gross, F. Ní Aoláin, Models of accommodation, in O. Gross, F. Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice, Cambridge University Press; 2006, pp. 17-29, 35-46 and 66-85;
C. Bjørnskov, S. Voigt, The Architecture of Emergency Constitutions, in C. Bjørnskov, S. Voigt, State of Emergency: An Economic Analysis. Cambridge University Press, 2024, pp. 101-111;
Documents and materials available on MyAriel.
Second Module:
O. Gross, F. Ní Aoláin, Models of Accomodation, in O. Gross, F. Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice, Cambridge University Press, 2009, pp. 30-34, 46-65.
Materials and documents uploaded in MyAriel site.
Non attending students
First Module:
T. Groppi, A. Simoncini, Foundations of Italian Public Law, Giappichelli, 2023, 9-29, 101-112, 85-98, 31-43, 149-151;
J. W. Müller, M. Schor, and G. Jacobsohn, Militant Democracy and Constitutional Identity, in G. Jacobsohn and M. Schor (eds.), Comparative Constitutional Theory, Elgar Publishing, 2018, pp. 415-435;
O. Gross, F. Ní Aoláin, Models of accommodation, in O. Gross, F. Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice, Cambridge University Press; 2006, pp. 17-29, 35-45, 66-85;
C. Bjørnskov, S. Voigt, The Architecture of Emergency Constitutions, in C. Bjørnskov, S. Voigt, State of
Emergency: An Economic Analysis. Cambridge University Press, 2024, pp. 101-111;
A. Greene, The Ideal State of Emergency, in A. Greene, Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis, Oxford: Hart Publishing, 2018, pp. 1-32.
Second Module:
O. Gross, F. Ní Aoláin, Models of Accomodation, in O. Gross, F. Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice, Cambridge University Press, 2009, pp. 30-34, 46-65;
T. Poole, Constitutional Exceptionalism and the Common Law, in International Journal of Constitutional Law, 7, 2, 2009, 247-274;
K. Lane Scheppele, North American Emergencies: The Use of Emergency Powers in Canada and the United States, in International Journal of Constitutional Law, 4, 2, 2006, 213-243;
T. Ginsburg, M. Versteeg, The Bound Executive: Emergency Powers during the Pandemic, in International Journal of Constitutional Law, 19, 5, 2021, 1498-1535;
C. Bjørnskov, S. Voigt, When does Terror induce a State of Emergency? And what are the Effects?, in C. Bjørnskov, S. Voigt, State of Emergency: An Economic Analysis. Cambridge University Press, 2024, pp.131-189.
Assessment methods and Criteria
Attending students:
The final exam is oral and consists of four questions:
one question aimed at making sure that the students have a comprehensive understanding of the comparative constitutional methodology and of comparative law concerning forms of State, constitution making processes, amending procedures and judicial review in the background of the transitional legal orders influence on constitutional law;
- three questions aimed to verify whether the students can express critically an overall comparative assessment of emergency powers and can apply the knowledge, the methodology, and the skills acquired to different cases. The power point presentation in class of two cases at least in comparative perspective will be evaluated (from 1 up to 2 points) during the final oral exam.
The final grade will be expressed in thirties (0/30).
Non attending students:
The final exam is oral and consists of six questions:
two questions aimed at making sure that the students have a comprehensive understanding of the comparative constitutional methodology and of comparative law concerning forms of State, constitution making processes, amending procedures and judicial review in the background of the transitional legal orders influence on constitutional law.
- four questions aimed to verify whether the students can express critically an overall comparative assessment of emergency powers and can apply the knowledge, the methodology, and the skills acquired to different cases.
The final grade will be expressed in thirties (0/30).
The final exam is oral and consists of four questions:
one question aimed at making sure that the students have a comprehensive understanding of the comparative constitutional methodology and of comparative law concerning forms of State, constitution making processes, amending procedures and judicial review in the background of the transitional legal orders influence on constitutional law;
- three questions aimed to verify whether the students can express critically an overall comparative assessment of emergency powers and can apply the knowledge, the methodology, and the skills acquired to different cases. The power point presentation in class of two cases at least in comparative perspective will be evaluated (from 1 up to 2 points) during the final oral exam.
The final grade will be expressed in thirties (0/30).
Non attending students:
The final exam is oral and consists of six questions:
two questions aimed at making sure that the students have a comprehensive understanding of the comparative constitutional methodology and of comparative law concerning forms of State, constitution making processes, amending procedures and judicial review in the background of the transitional legal orders influence on constitutional law.
- four questions aimed to verify whether the students can express critically an overall comparative assessment of emergency powers and can apply the knowledge, the methodology, and the skills acquired to different cases.
The final grade will be expressed in thirties (0/30).
IUS/21 - COMPARATIVE PUBLIC LAW - University credits: 6
Lessons: 40 hours
Professors:
Filippini Caterina, Nocera Laura Alessandra
Professor(s)
Reception:
Room 6