LLB325 Comparative Law Unit Guide ST3 2019 PDF

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LLB325 Comparative Law

Unit Information and Learning Guide

ST3 2019 European Summer program, Macerata, Italy

Lecturer: Dr Ermanno Calzolaio Email: [email protected]

Unit Coordinator: Professor Jürgen Bröhmer [email protected]

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LLB325 Comparative Law Unit Guide

© Published by Murdoch University, Western Australia, 2018. Originally written by Ermanno Calzolaio This publication is copyright. Except as permitted by the Copyright Act no part of it may in any form or by any electronic, mechanical, photocopying, recording or any other means be reproduced, stored in a retrieval system or be broadcast or transmitted without the prior written permission of the publisher.

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CONTENTS

Unit Information ONE

Introduction Study Schedule and Content…………………..…….

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TWO

Resources for LLB325……………………………..

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THREE

Assessment…………………………...……………

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ONE INTRODUCTION Unit Overview This Unit will provide a comparative perspective on the formation of the western legal tradition and will explore the different meanings of Civil Law: as “learned” law, as “European Common Law”, as “Code Law”. Attention will be given to the philosophical and legal significance of the movement of codifications and to an analysis of the French Civil Code (Code civil, 1804 - taking account of the reform of the law of contracts in force since 2016) and the German Civil Code (BGB, 1900), their genesis, structures, contents, styles and influences. This study will enable a comparison between civil law and (English) common law traditions. Then, focus will be concentrated on the main features of the Civil Law Tradition, with specific attention to the role of case law in France, Germany and Italy, distinguished from the role of case law in common law. In this scenario, it will be possible to introduce a comparison of property law and contract law in the civil law-common law traditions. Finally, the different meanings of “European Private Law” will be considered and the role of EU Court of Justice in the construction of EU Law, with special reference to the rule of precedent in EU Law.

Learning Objectives The following outcomes are the learning objectives for this Unit: • Be able to understand the substance of basic civil and common law principles • Be able to understand how the legal systems in a number of countries function in specific fields • Have a greater appreciation of the similarities and differences in the functions and approaches used in civil law and common law traditions

Graduate Attributes This unit will contribute to the development of the following Graduate Attributes: - Critical and creative thinking: This Unit takes a critical look at the many misconceptions as to how the law operates in the common law and civil law systems. - Ethics: Students will be asked to think about the close relationship between what is ethical in a range of different national legal settings. - Global perspective: This Unit’s focus on European and comparative law offers a uniquely global perspective which transcends the borders of Australian law, and thus will hopefully contribute to a much greater awareness of and respect for the social, cultural and economic interdependence of the global community.

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See:

In-depth knowledge of a field of study: This Unit’s very focus is one designed to provide a much more comprehensive and in-depth knowledge of the study of law in a comparative perspective which students would not normally receive at Murdoch University. http://our.murdoch.edu.au/Educational-Development/Preparing-toteach/Graduate-attributes/

Lecturer Professor Ermanno Calzolaio received his Degree cum laude in Law in 1991 at the University of Macerata, and a PhD in Comparative Private Law and European Union Private Law in 1995. Since 2006 he has been a Full Professor in Comparative Private Law at the University of Macerata and holds the seat in Comparative Law Systems and Comparative Private Law. Between 2012 and 2018 he occupied the position of Dean of the Faculty of Law at the University of Macerata. He is visiting professor at the Universities of Orléans (France), Lund (Sweden), Pekin Normal University (China), Shanghai University of Political Science and Law (China), Murdoch University (Australia).

Contact Details Lecturer:

Professor Ermanno Calzolaio

Email:

[email protected]

Unit coordinator Your unit coordinator is Professor Jürgen Bröhmer Email: [email protected]

Administrative contact Fiona Peters: +61 8 9360 6820 [email protected]

Technical Help For technical difficulties with LMS, contact the IT Service Desk at [email protected] .

Scheduled Seminars The location for the units will be in the Polo Pantaleoni building (ex-Menichelli), Via Pescheria Vecchia, Aula ROSSA 2 (classroom red 2).

The following schedule is tentative and for general information purposes only. It may change in the course of the unit to reflect the pace of progress during the lectures.

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Week 1 Monday, 1 July Tuesday, 2 July Wednesday, 3 July Thursday, 4 July

Introduction; Section 1 Sections 2-3 Section 4-5-6 Sections 7-8

Week 2 Monday, 8 July Tuesday 9 July

Sections 9-10 Section 11-12

Week 3 Wednesday, 17 July

Exam

Attendance Lectures are NOT recorded. Attendance is not only expected, but is highly desirable in order to fully benefit from this Unit and progress towards the learning objectives and graduate attributes.

Readings A lecture-by-lecture description of the topics to be covered in the Unit is set out below. Whilst every effort will be made to follow the format as closely as possible, circumstances may, and often, will require some alterations. The reading materials are contained in the Unit Reader for LLB325. Lecture Number 1

Topic Description Reading Introduction and History of Law Unit Reader section 1 as a Tool for Comparative Law

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Civil Law as “Learned” Law: a) At Unit Reader section 2 the Origins of Civil Law Tradition Civil Law as “Learned” Law: b) Unit Reader section 3 The renaissance of Roman Law (Glossators and Commentators) Civil Law as “Learned” Law: c) Unit Reader section 4 The reception of Roman Law

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4

5 and 6

Civil Law as “European Common Law” Civil Law as “Code Law”: the Unit Reader sections 5 to 19th Century Codifications and 11 its origins The Legal and Philosophical Page 6 of 12

LLB325 Comparative Law Unit Guide

7 Significance of the Codes The French Civil Code of 1804 and its Influence

7 and 8

The “Ecole of Exegèse” (its Limits and Evolution) The French Code’s Diffusion in Germany, its Impact on German Law and the Codification Debate The German Civil Code (“BGB”): Structure, Contents and Style, The Role of Case Law in French Law and in German Law

9 and 10

11 and 12

The Evolution of the Italian Civil Code 1865 – 1942 The main features of the civil Unit Reader sections 12 – law tradition: 15 • the continental judges, • the legal profession, • the division of jurisdictions, • a systematic approach to law (and the legal education), • the sources of law, • the role of precedent. Overview of property law and Unit Reader section 16-17 contract law in the civil law and common law traditions.

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TWO RESOURCES FOR THE UNIT Unit Materials The reading materials for this Unit are collated in a Unit Reader. This will be provided to you prior to the start of the Unit on a USB drive.

Required Text There is no required textbook for this Unit, though the Unit Reader is considered essential for students of LLB325. Additional materials may be distributed to students before relevant seminars. These may be distributed in class and/or posted to the LMS page.

Library Resources Generally, the catalogue of the Max-Planck Institute for Comparative Public Law and International Law is a great research tool because it allows you to conduct searches in English with various parameters and limits the outcome to English language material if you wish and because of this the library is very comprehensive. The link to the catalogue is: http://www.mpil.de/ww/en/pub/library/catalogues_databases/opac.cfm

Time commitment and attendance Students should attend all sessions. Efficient learning involves active participation and involvement with the lecturer and your fellow students. Lectopia will not be used in this unit. As this is a 3 credit point unit, we expect you to spend on average 150 hours overall working on this unit. This will include pre-reading, lecture attendance, study, exam, research and writing of assignment. See the Units Policy and the guideline of an average student workload of 50 hours for one credit point http://our.murdoch.edu.au/Student-life/Study-successfully/Make-the-most-ofyour-study/

Non-standard teaching period dates • • •

LLB325 Comparative Law is taught over a non-standard teaching period (ST3) – 1 July 2019 to the 27th September 2019. The HECS census date for this unit is the 21 July 2019. The first date for withdrawal with Fail recorded is 7 September 2019.

See http://print.handbook.murdoch.edu.au/dates/teaching_periods.php

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THREE ASSESSMENT University policy on assessment Assessment for this unit is conducted in accordance with the Assessment Policy. See: http://our.murdoch.edu.au/Educational-technologies/What-you-need-to-know/

Assessment Description, Criteria, Timing and Feedback Two methods of assessment will be used in this Unit: an exam and an assignment: Assessment

Value

Due Date

Examination 1.5 hours Assignment 3,000 words

30%

Morning of 17 July 2019

70%

12 noon, Monday 2 September 2019

In-class Exam For further information about examinations, See: http://our.murdoch.edu.au/Educational-technologies/What-you-need-to-know/ There will be an in-class examination on July 17th (start time to be confirmed in class). The exam will be of one and a half hours duration, plus ten minutes reading time. The exam will be closed-book and consist of short-answer questions. Alternative exam times and conditions will only be arranged in unforeseen and exceptional circumstances at the unit coordinator’s discretion. Travel plans, employment and social events are neither exceptional nor unforeseen. This examination comprises 30% of your final grade for this unit.

Assignment The dissertation comprises 70% of your final grade for this unit. The maximum word length is 3,000 words, not including footnotes or a bibliography. The paper must be properly referenced with a full bibliography. It will deal with one of the subjects covered during the units and indicated in this unit program. Originality of the paper and comprehensive research on the topics covered are essential elements in the evaluation of the work. Further detail will be given about the assignment and assessment criteria at the start of classes.

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Extensions and Late Submission Requests for extensions on the final assignment must be made in writing to the Unit Coordinator, with supporting documentation included. Requests should be made in advance of the due date. As you have two months between teaching and when your assignment is due, please plan your time carefully if you have more than one assignment due at the same time, as extensions will not be granted for lack of planning. Extensions will only be granted in unforeseen and exceptional circumstances at the unit coordinator’s discretion. Travel plans, computer malfunctions, employment and social events are neither exceptional nor unforeseen. Formatting The submission must be double spaced using Times New Roman 12 point font. The required referencing style is the Australian Guide to Legal Citation (3rd Ed) available at: http://law.unimelb.edu.au/mulr/aglc/about Assignments that are submitted late without an approved extension will receive a deduction of 10% of the total available marks for each day or part thereof after the due date. This includes Saturdays, Sundays and public holidays. Assignments that are submitted more than five days late without an extension will receive no marks.

Assignment cover sheets You are to use the Law School Assignment cover sheet if submitting in hard copy. All of the information on the sheet must be completed. If not, your submission will not be marked. The word count must be clearly stated on the front of your submission.

Where to submit your assignment Make certain you hold an intact copy of your work in case it is mislaid or lost. Assignments should be submitted electronically through the LMS. Where assignments are submitted in Microsoft Word, the coversheet and assignment should be submitted as a single file. So your work doesn't get mixed up with others', use a filename which follows the convention: Unit Code, Assignment Number, the first three characters of your last name, your first initial and your Student Number. e.g. LLB325Assign1ChoJ12345678. The word count must be clearly stated on the front of your submission.

Determination of Final Grade Your final grade will be based on a simple addition of the marks for each of the assessment components. See Section 11 in the current Assessment Policy regarding grades.

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Notation

Grade

Percentage Range

HD D C P N DNS

High Distinction Distinction Credit Pass Fail Fail

SX/SA

Supplementary Assessment

80 – 100 70 – 79 60 – 69 50 – 59 Below 50 Below 50, did not submit any assignments after HECS census date 40 – 49*

*The award of the grade of SX shall be at the discretion of the Unit Coordinator. Please note: There will be NO supplementary assessment granted in this unit. A Board of Examiners makes the final decision on all grades at the end of each semester. Since the Board may refuse to accept the grades submitted by a lecturer, all interim marks awarded during the semester should be regarded as provisional until approved at the end of semester.

Teacher Expectations in Assessment Assessment exercises are more than measuring devices, or ways of ensuring that the work for the Unit is done. They are also ways in which you can determine your progress and gain ideas for improvement, in the Unit, and for other work of a similar sort in other Units. Students are expected to have made efforts to understand the substance of comparative law and to be able to demonstrate through the assessments in this Unit that they can identify and apply the international legal standards taught during lectures, as well as to further develop an in-depth understanding of these through further work and research, as well as to actively seek to expand on this knowledge beyond what is seen during lectures.

Assessment roles and responsibilities See: http://our.murdoch.edu.au/Educational-technologies/What-you-need-to-know/

Academic Integrity Murdoch University encourages its students and staff to pursue the highest standards of integrity in all academic activity. Academic integrity involves behaving ethically and honestly in scholarship and relies on respect for others’ ideas through proper acknowledgement and referencing of publications. Lack of academic integrity, including the examples listed below, can lead to serious penalties.

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Plagiarism

Inappropriate or inadequate acknowledgement of original work including: Material copied word for word without any acknowledgement of its source • Material paraphrased without appropriate acknowledgement of its source • Images, designs, experimental results, computer code etc used or adapted without acknowledgement of the source. An assignment written by a third party and represented by a student as her or his own work. Material copied from another student’s assignment with her or his knowledge. Material copied from another student’s assignment or work without that person’s knowledge. •

Ghost writing Collusion Purloining

Adapted from Section 9.3 of the Assessment Policy, Plagiarism and Collusion.

Plagiarism-checking software The University uses software called Urkund which checks for plagiarism. Urkund is embedded in the electronic drop box, and you will automatically be sent an email by Urkund with your similarity report. Please note that when you or your Unit Coordinator submits assignments electronically to Urkund, a copy of your work is retained on the database to check collusion and future plagiarism. The University has a legal agreement with Urkund that it will not share or reproduce student work in any form.

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LLB325 Comparative Law Unit Guide...