Much has been written about Viking voyages, raids, exploration and settlement in the North Atlantic, the Baltic and the lands of northern and western Europe during the Viking Age. The same applies to the activities of Scandinavian Vikings – the so-called Varangians (mostly Swedish) – in Russia, on the Russian rivers, in the Black Sea and the lands of the Byzantine empire. Students of Viking history have long been familiar with the most important facts of this history although ”new” knowledge is still being brought to light, offering new perspectives and interpretations. This is not least due to recent archaeological research in the area.
Tag Archives: Portugal
Europe’s Constitutional Law in Times of Crisis: A Human Rights Perspective
In this paper, we aim to survey representative constitutional amendments in the European Union’s (EU) area, whether attempted or accomplished, as well as significant adjudications by constitutional bodies. Then, we proceed to assess these legal phenomena in light of human rights jurisprudence. Pivotal reference in our work is the recently released 7th volume of the Annuaire international des droits de l’homme (Athens: Sakkoulas, December 2014), edited by G. Katrougalos, M. Figueiredo and P. Pararas under the aegis of the International Association of Constitutional Law. Not only does this volume comprise the work of some of Europe’s noted constitutionalists, it also addresses the constitutional matters central to this paper in light of human rights jurisprudence, which is the area of expertise of one of the paper’s authors, i.e. Ágúst Þór Árnason, and the area that the other author, Giorgio Baruchello, has construed axiologically as a pivotal instantiation of civil commons, i.e. “all social constructs which enable universal access to life goods”. Have European constitutions continued to function qua civil commons in the crisis years? That, at the deepest level of value scrutiny, is the question that our joint survey and analysis aim to answer.
Continue reading Europe’s Constitutional Law in Times of Crisis: A Human Rights Perspective
R. Bohlin, De Osynliga. Det Europas fattiga arbetarklass; M. Linton, De hatade. Om radikalhögerns måltavlor; B. Elmbrant, Europas stålbad. Krisen som slukar välfärden och skakar euron (All titles by Atlas, Stockholm, 2012)
The feminist journalist Rebecca Bohlin has looked into the working and living conditions of the least paid workers within the service sector, although reminding to us that many other jobs in different sectors meet similar problems. She has met cleaners, kitchen attendants and cashiers in Stockholm, London, Hamburg and at the same time has interviewed scholars and as well politicians and union representatives about the rise in income inequality and the worsening of working conditions, across Europe and in Sweden.
And to Sweden indeed is devoted the first chapter (Hur mår RUT?). The question of rising inequalities has become hot after 2007, when tax deductions for domestic service (RUT) were introduced, with the argument that the black market was to be stopped. In fact, however, according to the unions and to some research, the outcome has been an increasing in the number of workers (often asylum seekers or anyway migrants, very often women) exploited and with no safeguard: their formal job contract is legal, but their actual working conditions are definitely different, and for the worse. Yet in Sweden, as Bohlin acknowledges, living conditions of the low-paid workers are better that in most other countries.
In the second chapter (Så pressas lönerna neråt) Bohlin analyzes, again through witnesses and interviews, migration policy at the EU level and in some of its member States. She insists on the paradox of a rhetoric stressing the need of labour force from outside Europe, in order to face demographic challenges and to make companies more “globalized”, while at the same time the actual policy is based on a military defence of the “fortress Europe”, at the cost of thousands of human lives every year. And those who succeed in reaching Europe are often exploited both economically and, when women, sexually. And that even in a country that is a world master in workers’ rights and gender equality such as Sweden.
How are trade unions tackling this backward trend to a degree of workers’ exploitation similar to that in the 19th century? Around this unavoidable question the third chapter (Facket famlar efter en ny solidaritet) is built. The answer is not at all self-evident; on the contrary, here one goes on attempt by attempt. However, what comes out from the talks that the author has had with union leaders and members, in Sweden and in the UK, as well as with scholars, is that a trade union like the Swedish one, service-oriented, is not well-equipped to face the challenges that labour movements all over the world have to meet. More interesting it seems the experience of the “Social Movement Unionism”, a strategy that has been tested in South America and is made up of a mix of mobilization, learning, dialogue with local society, negotiations – and protest actions. Exactly what many all over Europe – either workers or unemployed, migrant or local – call for.
An even darker side of Europe is the subject of Magnus Linton’s work, that he describes in his Introduction as a book on “majorities and minorities, absolutism and relativism, boarders and lack of them, fantasy and reality”. The author, well-known in Sweden for his reports after the carnage in Utøya, has carried out an inquiry about right-wing radicalism in three European countries: Hungary, the Netherlands and Norway, moving from the awareness that the current economic crisis increases its appeal. Linton has met the main targets of xenophobic and neo-nazi groups, respectively Roma people in Hungary, muslims in the Netherlands and left-wing intellectuals in Norway. The first section (Parasiterna), after reminding shortly the persecution of Roma in history (culminating with their, neglected, massacre during World War II) and the recent deportation of Roma in countries such as France, Italy and Sweden, introduces the reader to the disturbing world of the Hungarian neo-fascist party Jobbik (Movement for a better Hungary), whose programme is openly “roma-centered”, so to say, and that in 2010 established itself as one of the main political forces in the country with 17% of votes. Jobbik’s growing influence resulted in a situation that Linton, with reference to what happened in the municipality of Gyöngyöspata, tells in the following way: “in 2011 in the middle of Europe fascists in uniform marched and families belonging to one of the poorest and most persecuted minorities in the continent were forced to escape what otherwise would have turned into a pogrom”. And Gyöngyöspata was only the beginning. However, the political scientist Zsolt Enyedi, interviewed by Linton, points out that these developments in Hungary were at the same time astonishing and predictable. Their roots can be found in a historical process starting from the fall of the Berlin wall; since then, populism has been a constant presence in Hungarian life and in the end has exploded due to the economic crisis. The fact that in 2010 the nationalist and authoritarian party Fidesz won 2/3 of the votes has made the situation even worse and transformed Hungary into a stronghold of radical Right in Europe.
Another country, another scapegoat: in the Netherlands, as it is well-known, the thesis that “our” problems could be solved if only “we” got rid of Muslims has found one of its most prominent champions, i.e. Geert Wilders, leader of the Freedom Party and major pointer for Dutch politics for years (see the section: Ockupanterna). Though making sure to distinguish himself from people like Anders Berg Breivik (who pointed at Wilders as his ideological source of inspiration) by stressing his own democratic attitude, Wilders has steadily run down Islam, equating it with Fascism. Together with Pim Fortuyn (murdered in 2002 by a left-wing extremist), he has personified the idea that multiculturalism is a luxury only the privileged few can afford and has transformed the Netherlands into the headquarters of islamophobia in Europe.
The Dutch historian Thomas von der Dunk, here quoted, urges to take into account that politics’ highest aim is economic security, as well as the capability for society to accept cultural uncertainty; but when the former decreases, then the need for a strong cultural identity rises.
Roma people and Muslims are easy scapegoats in a continent affected by geopolitical and economic turbulences; but how came that in the rich and enlightened Norway a right-wing extremist killed more than 70 young left-wing activists? What Berg Breivik aims at with his double attack (a bomb in Oslo and the carnage on the Utøya island) was, as Linton explains, to murder at the same time three generations of “betrayers” (hence the title of the section, Förrädarna), i.e. three generations of Social Democrats: the forthcoming (the young activists who met in Utøya), the present (the governmental headquarter in the capital), and the former (Gro Harlem Brudtland, former prime minister, who escaped assassination in the island due to a delay in Breivik Berg’s plan).
What has been betrayed are Norwegian culture and identity, quite obviously. Breivik Berg defines “cultural Marxism” what could otherwise be summarized as “politically correct”, in other words the idea that there are some topics that cannot be questioned, above all feminism and multiculturalism. Linton points out that coinciding with the perhaps unstoppable march of right-wing extremism in Europe is the discontent caused by what has been perceived as the hegemony of political correctedness, which has become more and more centered upon universities. After all, right-wing radicalism is not interested in discussing rationally a question (which is supposed to be the academic approach) but, on the contrary, in imposing its own understanding of reality. And it is succeeding in doing this. Linton recalls our attention to the fact that what is striking in Breivik Berg is not his insanity, but how much he reflects stereotypes and plot-syndromes related to Islam that unfortunately are represented in more or less all the European parliaments (as well as in the EU one).
Not even the book by Elmbrant, one of the most prominent Swedish journalists, is intended to bring comfort to the reader. Here as well the impact of the economic downturn is looked into in a European perspective, yet with a particular attention to countries such as Greece (see chapter 1, Ett land faller sönder) and Ireland (chapter 3, Irland på liv och död). In chapter 2 (Hur hamnade vi här?) the author follows the making of the Euro and then compares the faith of two countries, Ireland and Iceland; both hit by the crisis, but the latter (outside the common currency) recovering better. Italy is not at all forgotten in this account: the doubts about its financial soundness have been recurrent amongst EU – and German in particular – leaders, for many years. However, Elmbrant warns (chapter 4, Skenbilden av krisen) against those, in Brussels as well as Berlin and Paris, who blame upon some countries ? the Southern European ones primarily ? the European financial difficulties, as the problem were simply that if one spends too much, then one has to pay back sooner or later. Elmbrant is well aware that Greece, with all the stereotypes surrounding it, has worked as a perfect scapegoat, but insists on the European dimension of the economic crisis. The trouble indeed is not the Greeks’ unreliability, but the EU powerlessness in the face of much bigger transnational financial powers. In this connection, it needs to be said that left-wing parties have definitely not been united and consistent in their (often late) condemnation of the abuse of power from private banks and finance at large.
It cannot miss, in this critical report about the EU state of health, a chapter on Angela Merkel, significantly entitled She who decides (5, Hon som bestämmer) and on Germany’s hegemonic role. The outcome of financial powers’ and Germany’s supremacy are described in chapter 6 (Europas stålbad), again focusing mostly on Southern Europe, but raising a more general question: the changing role of the Nation-State. Here Elmbrant mentions an article on The New Left Review by the German social scientist Wolfgang Streeck as crucial: the dismantlement of Europe’s social policies has restricted the ability of the State as far as mediating between citizens’ rights and Capital’s diktats is concerned, and by this move increased further the latter’s authoritativeness as well. There have been massive demonstrations against budget-restriction policies, at least in Greece, Spain and Portugal (chapter 7, De unga på marsch), but Elmbrant does not forget that up to now it is the Radical Right the political actor who seems to have taken more advantage from the crisis, and not the Left. Are the European Central Bank and Merkel right when presenting austerity as the only way out of the crisis or can young people protesting in Athens, Madrid and Lisbon point out to an alternative? The last two chapters are built around this question.
After summarizing the different proposals currently discussed in the EU (in the end all related to the dilemma: more or less unity among member States? See chapter 8, Stopp i Brysseltrafiken), Elmbrant closes his report by handling the question of the future of the common currency (chapter 9, Har euron en framtid?). After looking at expert analysis and people’s mood his answer (well reflecting Swedish attitude to the EU) is: the Euro is doomed to collapse ? after all it has been a mistake from the beginning ? with consequences that in some cases will prove to be devastating. And thinking at what is going on in many European countries we can easily believe that this apocalyptic scenario is not simply a kind of snobbery from the rich Nordic countries.
Development and Codification of Private Law in Portugal
I. Middle Ages
1. After the collapse of the Western Gothic Empire in 714, the majority of the Iberian Peninsula came under the rule of Arabs; therefore, temporarily the Roman law could not be applied. Consequently, when dealing with the effect and survival of the ius Romanum we refer to those territories of the Iberian Peninsula where Christian monarchies were established.
An evidence of the significant influence of Roman law are the Ordenações Afonsinas (also called as Ordenações do Rey Afonso V). They were approved in 1446-1447, during the reign of Afonso V (1432-1481) – who was under the tutelage of his mother, later his uncle until 1448. This five-volume work consists of several sources of law (fontes iuris Lusitani). On one hand, it consists of the laws (leges) adopted since the reign of Afonso II (1211-1223), which were influenced by the practice of the Cortes. On the other hand, it includes the customary law (ius consuetudinarium, consuetudines). The courts were obliged to apply the provisions of the Ordenações Afonsinas.
In Portugal the customs (costumes) and certain municipal statutes (statuta) included several elements (i.e. institutions, concepts and terminology) of Roman law.
The Codex Euricianus and the Portugal translation of the Siete Partidas, adopted during the reign of Alphonse the Wise (Alfonso el Sabio) were in force. The formal reception (receptio in globo or receptio in complexu) did not take place in Portugal; contrary to Spain or Germany (i.e. the Holy Roman Empire; Sacrum Romanum Imperium).
3. In Portugal the so-called common law (direito comum) – similarly to Spain and Andorra – is based on the Roman law (ius Romanum) and the Canon law (ius canonicum).
It did not weaken the authority of the Glossa ordinaria of Bartolus’ and Baldus’ commentaries that the courts could apply these compilations only in case they were in conformity with the communis opinio doctorum. A reason for this was the fact that in many cases the establishment of the rules of the communis opinion doctorum required long examination. The Ordenações Manuelinas, which were promulgated in 1521, the last year of the reign of Manuel I (1495-1521), includes similar rules.
The Ordenaç?es Filipinas (1603) provide parallel rules. It shall be noted that in this era, Portugal was under the rule of Spain. The Ordenações Filipinas were promulgated by Philip III (1598-1621), who was the king of Spain and of Portugal (as the monarch of Portugal, Philip II) in the same time.
II. Modern Times
4. The Lei da Boa Razão (para os direitos das nações polidas e civilizadas) – adopted during the reform governance of Marquis de Pombal[1] (under the reign of Joseph I [1750-1777]) – regarded Roman law (direito romano) as a subsidiary source of law, that may be applied in case it was in conformity with the boa razão (which practically indicates the natural law [direito natural]). The law adopted on 9 September, 1769 (Lei de 9 de setembre 1769), which comprehensively modified the rules governing the law of successions (direito sucessório) is worth mentioning. In this reform, the ideas of the Enlightenment played an important role (“reforma iluminista”).
5. José Homem Correia Teles (1780-1849) in his work entitled “Theoria da interpretação das leis” (1815) followed the dogmas of Jean Domat (1625-1696). His work published in 1824 interpreting the Lei da Boa Razão had significant importance. Correia Teles also played an important role in the compilation of the Portuguese Civil code. He was a member of the committee entrusted with drafting the code. Correia Teles in his influential work of three volumes (“Digesto portuguez, ou tractado dos direitos ou obrigações civis, accommodado as leis e costumes de nação portugueza para servir de subsidio ao Novo Codigo Civil”), which was published in 1835, regarded the Prussian Allgemeines Landrecht and the French Code Civil as having guiding value for the Portuguese Civil code.
However, according to views of Correia Teles, the long-established Portuguese civil jurisprudence based on the Roman law traditions should have been the basis of codification. We shall mention in this regard the textbook of Manuel António Coelho da Rocha (1793-1850) entitled Instituições de direito civil portuguez[2] in which the renowned civilist deals with and presents the traditional Portuguese civil law.
6. In the 19th century, the representatives of a movement of codification – supported by politicians, as well – suggested that the legal traditions should be abolished. A. L. Visconde de Seabra (1798–1895), follower of the School of Law of Natural Law (Escola do direito natural), who was entrusted with the codification in 1850, published his draft in 1858. Similarly to the Swiss jurisconsult Walther Munzinger (1830-1873) and Eugen Huber (1849-1923), Seabra was exclusively charged with the work of the codification. The draft (Proyecto) of Visconde de Seabra was presented to the government in 1858. After several amendments, the Portuguese Código civil came into force during the reign of Louis I (1861-1889) in 1868.
Besides the oeuvre of Visconde de Seabra – graduated in Coimbra – as legal scholar, translator of literary works and philosopher, his political activities also gained significance. He translated into Portuguese works of classical Latin authors, such as Horatius and Ovidius. Seabra also commented their works – his commentaries are of great value even in the present time. The importance of his work dealing with the philosophy of law entitled “A Propiedade. Philosophia do Direito para servir de introducção ao comentario sobre a Lei dos foraes” shall be emphasized. This work – published in 1850 – played an important role in his assignment as the compiler of the Civil code. Seabra was appointed the minister of justice and ecclesiastical matters in 1852 and 1868 for a short time. He was the president of the Portuguese Chamber of Deputies (Câmara dos Deputados) between 1862 and 1868. Seabra was also the Rector of the University of Coimbra (founded in 1290) between 1866 and 1868.
7. In the drafting of the Código civil the liberal Seabra took into account the provisions of the Prussian Allgemeines Landrecht für die preußischen Staaten related to civil law, the French Code civil and the Austrian Allgemeines Bürgerliches Gesetzbuch. Art 16 of the Código civil regards natural law (direito natural) as a subsidiary source of law (direito subsidiário).[3] In this respect, natural law is the law incorporated into the boa razâo, which is related to Roman law in several aspects. In the interpretation of the Código civil the five-volume commentary of J. Dias Ferreira (1837-1909) played an important role. Dias Ferreira interpreted the Civil code in compliance with the Roman law tradition.
8. The new Portuguese Civil code was adopted following prudent and thorough preparatory work in 1966. It came into force one year later.[4] The new civil code was influenced by the German BGB and the German civil law jurisprudence, for instance by the German doctrine of legal transactions (Rechtsgeschäftslehre). The effect of the German pandectist legal science (Pandektenwissenschaft) and the Historical School of Law (escola histórica) can be observed in the structure of the Código civil. It shall be noted that the General Part (Parte geral) of the Código civil is more extensive than the Allgemeiner Teil of the German BGB. Contrarily, the Portugal code does not provide the definition of the legal transactions. The first provision dealing with legal transactions (Art 217) only provides that expression of will may be explicit or implicit.
The committed follower of the idea of incorporating the General Part into the civil code was Professor Moreira. He established the discipline of the general part of the civil law in the University of Coimbra in 1900. In this regard, he was influenced by the German pandectist legal science.
The above-mentioned tendency concerning the general part originates from the renowned civilist, Manuel António Coelho da Rocha. Coelho da Rocha proposed even before the promulgation of the Código civil that the doctrines of the civil law should be incorporated into the code. He referred to the textbook of Ferdinand Mackeldey (1784-1834) entitled Lehrbuch des heutigen Römischen Rechts, which was translated into several languages and was known also in Portugal.[5] The structure of the Código civil currently in force and the introduction of the general part can be attributed to Moreira’s influence. However, it shall also be noted that French civil law also had a significant impact on the new civil code.
9. The commercial law in Portugal was codified in Portugal for the first time in 1833; four years later than the first Spanish commercial code had been adopted. It was the French Code de commerce that played a guiding role in the compilation of the code[6]. The work of the codification was carried out by José Ferreira Borges. With respect to the fact that in Portugal – similarly to Spain – the civil code was not put into force simultaneously with the commercial code, the Portuguese Código de comercio includes provisions of the law of obligations (direito das obrigações). Contrary to the commercial code adopted in 1888, this code of 1833 follows the concept moniste.
The second Portuguese commercial code (come into force on 1 January, 1889) was drafted by Francisco António da Veiga Beirão[7]. It shall be noted that the code of commercial corporations (Código das Sociedades Comerciais) of 1986 substantially amended the company law.
10. The Portugal civil code (which came into force in 1868) with minor amendments is still effective in the former Portuguese colonies (Goa, Damão and Diu) that were annexed by India in December 1961.[8] The provisions of the civil code of 1966 shall be applied in the former Portuguese colonies in Africa, even after their independence; in case these provisions are consistent with the constitutional order.[9] Consequently, in Angola (República de Angola), Mozambique (República de Moçambique), Cape Verde (República Cabo Verde), São Tomé and Príncipe (República Democrática de São Tomé e Príncipe) and Guinea-Bissau (República da Guiné-Bissau) the significantly amended versions of the code were adopted as national civil codes.
In Guinea-Bissau the unification of the commercial law and the company law can be observed. This progression is attained within the framework of the Organization for the Harmonization of Business Law in Africa (Organisation pour l’Harmonisation en Afrique du Droit des Affaires – OHADA
[1] Sebastião José de Carvalho e Malho (duke of Oeyras, Marquis de Pombal [1699-1782]) was appointed to Prime minister in 1756 by Joseph I. Marquis de Pombal abolished slavery in Portugal, and provided to the Brazilian original inhabitants the same rights as to the Portuguese people. He resigned in 1777, the first year of the reign of Mary I. The reforms of Marquis de Pombal, who was committed to the centralist state power and enlightened absolutism, were completely preserved.
[2] Coimbra, 1844.
[3] Art 16 of the Portuguese civil code regards the content of the principios de direito natural, conforme as circunstâncias do caso as subsidiary source of law (direito subsidiário).
[4] The preparatory works of the new Portuguese civil code began in 1940. Its legal basis was the No 33908 decreto-ley, which explicitly pointed out the defects of the civil code of 1867. The drafting of the new civil code was finished i.e. completed in 1966.
[5] Ferdinand Mackeldey was professor of Roman law in the University of Bonn, which was founded by Frederick William III of Prussia (1797-1840) on 18 October, 1818.
[6] The first Portugal commercial code (adopted in 1833) is often referred to as “Código de Ferreira Borges”.
[7] The commercial code (adopted in 1888) is often referred to in the literature as the “Código de Veiga Beirão”.
[8] Goa became a Portuguese colony in 1510. Goa was conquered by Afonso de Alburquerque. Goa became the capital of the Eastern Portuguese colonial territories. On 18-19 December, 1961, India occupied and subsequently annexed Goa, Damão and Diu. It shall be noted that on 17 August, 1962, the so-called French India (Inde Française) – Pondicherry, Kapikal, Yanaon and Mahé – became part of India in terms of international law; inasmuch as these territories were under the administration of India since 1954.
[9] Concerning the Portuguese colonial law (direito colonial) see: C.R. Gonçalves Pereira: História da administraçãon da justiça no Estado da India. Séc. XVI.I-II. Lisboa, 1964-1965.; C.E. Boxer: The Portuguese Seaborne Empire, 1515-1825. London, 1969. and idem: Portuguese Society in the Tropics. The Municipal Councils of Goa, Macao, Bahia and Luanda (1510-1800). London, 1969.
Rhetorical Strategies in Legal Argumentation. Some remarks on the recent decisions of the Portuguese Tribunal Constitucional and the Italian Corte Costituzionale on same-sex marriage
I think that contemporary theories of legal argumentation have let aside the idea that the analysis of legal argumentations can show the judges’ hidden ideological and political positions by resorting to traditional legal arguments. Just as an example, it may be interesting to analyze the justificatory function of argumentations contained in two decisions taken by two constitutional courts, in Italy and in Portugal, on the same question. Why constitutional courts and not, for example, a court of first instance? Constitutional judges, apparently, do not need to persuade anybody: there is no higher judicial authority, and their interpretation of constitutional text is definitive. For this reason, one can assume that strategic argumentation plays little role in the arguments justifying their verdicts. I hope I can show that this assumption may not, fully, reflect the reality.
Now, let us consider the examples: two decisions taken almost at the same time by two separate authorities in two different countries on the same matter, same-sex marriage. Also the judicial course is almost the same: same-sex couples applied for a marriage licence, and their application was refused, on the grounds that same-sex marriage is a violation of the Civil Code. Finally, the couples challenge the ban in court.
The Italian case
In the Italian case, in April 2009 the Tribunal of Venice sent the issue to the Constitutional Court, claiming a possible conflict between the Civil Code, which does not allow for same-sex marriage, and article 3 of the Italian Constitution, which forbids any kind of discrimination, and article 29, which is the article of the Italian Constitution concerning family. The Constitutional Court ruled on April 2010 that the statutory ban on same-sex marriage is not a violation of the Constitution[1].
In the grounds of the judgement, the Court briefly mentions art. 3 of the Constitution (which states that all citizens “are equal before the law, without consideration of sex, race, tongue, religion”)[2], saying that this article does not prohibit any form of discrimination, but only unjustified or unnecessary or disproportionate discriminations[3]. So, the question is whether the ban of same-sex marriage is a justified discrimination. For this purpose, the Court begins by examining “for logical reasons”[4] (that are instead reasons based on the content of the article) article 29 of the Italian Constitution, which defines family as a “natural society based on marriage”[5]. This definition is clearly gender-neutral, but the problem, obviously, is the qualification of the family as a “natural society”. In order to clarify this qualification, the Court resorts to traditional legal arguments. In these cases, the main argument is obviously the naturalistic argument. Yet, this argument has become less effective in post-traditional and multi-ethic societies: for this reason, the Court resorts also to a psychological argument, saying that “with this expression, as one can deduce from the preliminary work of the constituent assembly, the constitutional legislator meant underline that the family has original rights, not derived from the authority of the State or of the legal order”. As we can see, the naturalistic argument is still implicit, but the strategy of the Court is to hide this argument, which ultimately states the unnaturalness of same-sex marriage, by resorting to the intention of the legislator. It thus shifts the burden of proof to the “Constituent Fathers”. This strategy comes out most clearly in the following lines. First of all, the Court states that a legal concept such as “family” cannot be “crystallized” (“cristallizzato”), say, entrenched in a stable definition once and for all (thus, the Court is apparently avoiding the naturalistic argument), but immediately thereafter it adds that one cannot push the interpretation of a statute to the point to distort the “nucleus” of the content of a norm, and cannot reframe the statute in a way which incorporates phenomena and problems that could not have been foreseen at the time of its promulgation[6]. Now, to say that a legal concept is not closed or “crystallized” is equal to saying that it can incorporate phenomena and problems not foreseen at the time of its promulgation. But we can leave this aside, for the moment. What it is clear is that the pivot of the argument is the definition of this “core” or “nucleus” of the legal statement that cannot be changed.
In order to make this definition more precise the judges resort again to the psychological argument, saying that «as one can deduce from the preliminary work of the constituent assembly, the problem of the same-sex marriage was completely ignored by the assembly, though the homosexual condition was not unknown». And again: «the constituent fathers, while writing the art. 29, made reference to an institution [the family] already shaped» in the civil code[7]. In other words: when the constituent assembly talked about “family” it made reference to heterosexual marriage because: a) by using the expression “natural society” they meant an institution pre-existent to the legal order (that is assumed to be the heterosexual marriage); b) during the session of the constituent assembly, nobody talked about homosexual marriage; c) in any case, while discussing this issue, the constituent fathers made reference to the civil code.
The first argument is obviously naturalistic, the second one presupposes the intentional silence of the legislator, the third one turns the discourse into an historic argument: “Because of the absence of references, we must deduce that the constituent fathers made an implicit reference to the civil code”, which ban, de facto, homosexual marriage[8]. In order to strengthen this opinion, the Court uses finally the systematic argument, in this case the sedes materiae argument: the following article of the Constitution, which is art. 30, concerns filiation and its effects, this means that the family “as natural society” is the family that can potentially procreate biological children[9]. So, all included, the concept of “family” intended by the Constitution is the traditional one. And we come back to the naturalistic argument.
Once the legal concept of family has been defined, as the judges did in their ruling, it is clear that this concept does not include same-sex marriage. For this reason, the discrimination between heterosexual and homosexual couples is not unjustified and, ultimately, the civil code articles are not unconstitutional on the basis of the article 3 of the Constitution, which only ban unjustified discrimination.
The Portuguese case
The Portuguese case is quite similar. A same-sex couple challenges the ban in court, saying that the ban discriminates on the basis of sex and sexual orientation, and that discrimination on the basis of sex is banned by the 1976 constitution. Moreover, in 2004 a constitutional amendment explicitly protected sexual orientation from discrimination[10]. In May 2007 the Court rejected the couple’s claim[11]. The couple then appealed to the Portuguese Constitutional Court (Tribunal Constitucional). Similar is the judicial course, similar is the conclusion: the Tribunal Constitucional received the case in July 2007 and, in July 2009, decided that the constitution does not demand the recognition of same-sex marriage. Also the arguments used by Portuguese constitutional judges are quite similar. The plaintiffs based their claim on the alleged unconstitutionality of article 1577 of the Civil Codes (that clearly states: “two persons of different sex”)[12], but the Tribunal Constitucional, due to the fact that art. 36 of the Portuguese Constitution gives an ambiguously gender-neutral definition of marriage[13], ultimately decides to interpret the Constitution in the light of the Civil Code. The argument, roughly speaking, is that the Constitution only says “family”, generically, because it accepts implicitly the concept of family stated in the Civil Code. In order to strengthen this argument, which could appear unusual, the Portuguese Tribunal Constitutional resorts to the systematic argument, underlying the consonance between two different sections (the Constitution and the Civil Code) of the Portuguese legal system. In order to do this, they need something more: they need what we could call a “coherentist interpretation”, which can be obtained using the historical argument[14], the systematic a coherentia argument[15] or, more generically, a restrictive interpretative attitude as expressed by the brocard (legal maxim) ubi lex voluit, dixit; ubi noluit tacuit (“when the law wanted to regulate the matter, it did regulate the matter; when it did not want to regulate the matter, it remained silent”), a principle used in order to limit an excessively expansive interpretation that can go beyond the intention of the legislator[16].
As we can see, the two examples are analogous to each other. The main difference (which should not be underestimated) is that the Portuguese Constitution does not make reference to the family as a “natural society”. Actually, it does not specify how the concept of “family” should be understood. Using systematic arguments, the Portuguese Constitutional Court ultimately decided to interpret the Constitution on the light of the Civil Code, which explicitly declares that the marriage is a relationship between a man and a woman. This could seem surprising, especially if we consider that the Portuguese Civil Code was drafted before the current Portuguese Constitution. Therefore, what the Court wanted to do in this case was, obviously, to transfer the responsibility of any decision to the Parliament.
Conclusions
The argumentative tools used by both constitutional courts are almost the same and they are neither surprising nor unusual. The use of arguments such as the systematic argument, the historical argument, the psychological argument, and the appeal to the (both chronological and topographical) coherence of the legal system, are part of a strategy to emphasize the consistency of the latter, even where there is no such consistency. In the Portuguese example, this kind of strategy has been the core of the Court’s strategy. In the Italian example, due to the constitutional definition of “family” as “natural society”, the Court decides to resort to the naturalistic argument. However, the use of the naturalistic argument, which has been more common over the past decades, is now ancillary because of its lack of persuasiveness. For this reason the Court chooses, perhaps unconsciously, to cloak this argument about the “natural family” into one about the coherence of the legal system.
One of the standing results of modern theory on legal argumentation is that we have to differentiate between at least two levels of argumentation. On the lower level, a judicial decision is justified by reference to an existing legal statement. But it is possible that, in a given case, no applicable rule exists, or that several rules exist, which support, however, different decisions, or even that the interpretation of an existing rule, which is in principle applicable to the case, is unclear. In these situations, we are compelled to progress to a second level of justification. On this level we have to justify which rule, or which interpretation of a rule, should be applied.[17] At the first level, logical deduction is sufficient: judges do actually reason deductively. At the second level the question could be basically, from an argumentative point of view, persuading the audience about the correctness of an interpretation. For this reason, the second level is basically rhetorical, in the sense that strategic argumentation plays here a central role. In the two examples mentioned above, arguments are rhetorically balanced in order to persuade of the validity of the interpretation, while hiding political choices or ideological preferences by means of an appeal to the coherence of the legal system or to the “naturalness” of a social institution.
[1] Corte Costituzionale, Sentenza n. 138/210
[2] “All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions”.
It is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organisation of the country.
[3] Corte Costituzionale, Sentenza n. 138/210, 3, Considerato in diritto
[4] 9, Considerato in diritto
[5] “The Republic recognises the rights of the family as a natural society founded on marriage.
Marriage is based on the moral and legal equality of the spouses within the limits laid down by law to guarantee the unity of the family”.
[6] 9, Considerato in diritto: “è vero che i concetti di famiglia e di matrimonio non si possono ritenere “cristallizzati” con riferimento all’epoca in cui la Costituzione entrò in vigore, perché sono dotati della duttilità propria dei princìpi costituzionali e, quindi, vanno interpretati tenendo conto non soltanto delle trasformazioni dell’ordinamento, ma anche dell’evoluzione della società e dei costumi. Detta interpretazione, però, non può spingersi fino al punto d’incidere sul nucleo della norma, modificandola in modo tale da includere in essa fenomeni e problematiche non considerati in alcun modo quando fu emanata”.
[7] 9, Considerato in diritto: “come risulta dai citati lavori preparatori, la questione delle unioni omosessuali rimase del tutto estranea al dibattito svoltosi in sede di Assemblea, benché la condizione omosessuale non fosse certo sconosciuta. I costituenti, elaborando l’art. 29 Cost., discussero di un istituto che aveva una precisa conformazione ed un’articolata disciplina nell’ordinamento civile”..
[8] 9, Considerato in diritto: “in assenza di diversi riferimenti, è inevitabile concludere che essi tennero presente la nozione di matrimonio definita dal codice civile entrato in vigore nel 1942, che, come sopra si è visto, stabiliva (e tuttora stabilisce) che i coniugi dovessero essere persone di sesso diverso”.
[9] 9. Considerato in diritto, “Non è casuale, del resto, che la Carta costituzionale, dopo aver trattato del matrimonio, abbia ritenuto necessario occuparsi della tutela dei figli (art. 30), assicurando parità di trattamento anche a quelli nati fuori dal matrimonio, sia pur compatibilmente con i membri della famiglia legittima. La giusta e doverosa tutela, garantita ai figli naturali, nulla toglie al rilievo costituzionale attribuito alla famiglia legittima ed alla (potenziale) finalità procreativa del matrimonio che vale a differenziarlo dall’unione omosessuale”.
[10] Constitution of the Portuguese Republic, art. 13, 2: “No one shall be privileged, favoured, prejudiced, deprived of any right or exemptedm from any duty on the basis of ancestry, sex, race, language, place of origin, religion, political or ideological beliefs, education, economic situation, social circumstances or sexual orientation”..
[11] Tribunal da Relação de Lisboa, acórdão 6284/2006-8, 15/02/2007
[12] Art. 1577 (“Noção de casamento”): “Casamento é o contrato celebrado entre duas pessoas de sexo diferente que pretendem constituir família mediante uma plena comunhão de vida, nos termos das disposições deste Código” (corsivo mio); art. 1628 (“Casamentos inexistentes”), comma e): “É juridicamente inexistente […] o casamento contraído por duas pessoas do mesmo sexo”.
[13] Constitution of the Portuguese Republic, art. 13, 1 (“Everyone shall possess the right to found a family and to marry on terms of full equality”) and 3 (“Spouses shall possess equal rights and duties in relation to their civil and political capacity and to the maintenance and education of their children”).
[14] A recepção constitucional do conceito histórico de casamento como união entre duas pessoas de sexo diferente radicado intersubjectivamente na comunidade como instituição não permite retirar da Constituição um reconhecimento directo e obrigatório dos casamentos entre pessoas do mesmo sexo. (cfr. Gomes Canotilho e Vital Moreira, Constituição da República Portuguesa Anotada, vol. I, 4.ª edição, Coimbra, 2007, pág. 362).
[15] Mas a circunstância de a Constituição, no já citado n.º 1 do seu artigo 36.º, se referir expressamente ao casamento sem o definir, revela que não pretende pôr em causa o conceito comum, radicado na comunidade e recebido na lei civil, configurado como um «contrato celebrado entre duas pessoas de sexo diferente». Argomento sistemático-concettualistico (dogmatico).
[16] Na verdade, se o legislador constitucional pretendesse introduzir uma alteração da configuração legal do casamento, impondo ao legislador ordinário a obrigação de legislar no sentido de passar a ser permitido a sua celebração por pessoas do mesmo sexo, certamente que o teria afirmado explicitamente, sem se limitar a legitimar o conceito configurado pela lei civil; e não lhe faltaram ocasiões para esse efeito, ao longo das revisões constitucionais subsequentes.
[17] A. Soeteman, Deduction in Law, in F.H. van Eemeren (ed.), Argumentation: Analysis and Practices, Walter de Gruyter, Berlin-New York, 1987, p. 102.