Legal reasoning and stereotypes in

the case law from a comparative

family law perspective.
By Elena Falletti
Visualizing Law and Gender,
St. ary!s "niversity, #wic$enham, London
Septem%er &rd and 'th ()*'
Introduction
It is a truth universally acknowledged that in comparative law the
pattern of judgments is very varied. For instance in civil law
systems themselves, such as in France, nowadays, the ideology
related to the juge est-il la bouche de la loi, implemented during
the French Revolution, justifies the synthetic model of French
judgments, showing only hints of the facts of the case and the legal
reasoning of the judge. n the contrary, in !ermany, according to
the systematic and phylosophical tradition, judges often describe
the comple"ity of their logical and juridical reasoning.
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In the #ommon $aw %ystem in the case law
method the direct presence of facts
distinguishes reasoning with previous decisions
in the &classical& common law conte"t from
reasoning statutes or the constitution,
furthermore judges have to detail each logical
step according to the distinguishing principle.
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'ccording to the model of judgments
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it is possible to find gender
stereotypes in the legal reasoning
because the pattern of decisions
allows judges to e"press their own
opinions in rainbow families cases.
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(he aim of this presentation is the analysis of
gender stereotypes in family case law, especially
to the traditional gender roles) male-female,
husband-wife, father-mother. Indeed, analy*ing
the grounds of the judgments in an area with a
strong influence of political, philosophical,
religious and social issues as family law, we find
that stereotypes, especially gender stereotypes,
could hide themselves behind apparently neutral
concepts.
Introduction
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+hat is a stereotype,
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-specially a gender stereotype,
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It concerns the se" of a person, especially his or
her failure to conform with socially accepted
se"ual behaviour about what real men or
women do or don.t do.
(he concept of nature in the Italian
culture
(he concept of nature in the Italian
legal culture
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In the legal debate usually the concept of nature
is used to mas/ the concept of tradition and the
conservative bond with behaviors and situations
run during the history of society.
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(his scheme is reali*ed mainly in the conte"t of
discussions about the bioethical issues that by
their very essence are located on the border
between a traditional concept, lin/ed to the
conservation of &nature&, and an innovative idea
lin/ed to social and technological innovation
instead transformation or change the &nature&
hitherto /nown.
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Indeed, the human personality is becoming a
comple" matter made up of several elements
that determine its development according to the
inclinations of the individual.
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ne of these is undoubtedly se"ual orientation. It
concerns the direction in which an individual
tends to focus its affective and erotic energy to
other people. %uch direction is defined according
to the feelings and desires of the person.
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(herefore, se"ual orientation is at the core of the
human personality, and, as personal condition, it
is lin/ed to respect of personal dignity and
identity.
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(he words used in the te"t of 'rticle 01 of the
Italian #onstitution of 2134 such as &natural
society& are used by the conservative public
opinion to reserve marriage only to heterose"ual
couples formed of a man and a woman
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&5oral and legal e6uality&, &spouses& are
concepts not intended historically, but discounted
in the conte"t of our living society.
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In fact, the #onstitution consists of a bridge
between the past and future generations.
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(hey can identify themselves and share its
values.
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(he member of the society should not
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attribute to these concepts a gradient
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lin/ed to the gender of its members because
&nature& is itself inclusive, not e"clusive,
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due to all living beings pertaining to it.
(he Italian case law on same-se"
marriage
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7uring human history, marriage was
characteri*ed by elements protecting traditional
values through the celebration of a sacred rite
giving stability to society. -specially the marriage
rite was surrounded by a golden aura that hid
both the regulation, through a contract, of the
ownership of families of the bride and groom and
the signing of alliances among aristocrats or
wealthy people.
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8owadays in Italy, the concept of nature is
commonly used in legal arguments relating to
marriage for hiding the concept of tradition that
has been treated by previous generations.
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9owever, in the contemporary age marriage has
no longer the function of managing assets,
alliances, properties, and also the issue of social
legitimacy necessary to perform a rite has been
crac/ed, destroyed by the spread of mass
divorce.
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(he obvious conse6uence is the opening of the
marriage also to same-se" couples.
8evertheless, the traditional thought permeates
so much the mentality of legal operators that
only Italian legal scholars boo/s needs to specify
the re6uired difference of se" between husband
and wife as a re6uirement for the validity of
marriage.
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(he obvious conse6uence is the opening of
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the marriage also to same-se" couples.
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9owever, the traditional thought
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permeates so much the mentality of operators
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that only Italian scholars boo/s needs to specify
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the re6uired difference of se" between
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husband and wife as a re6uirement
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for the validity of marriage.
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In fact neither the Italian constitution nor the civil
code e"plicitly provide for the se" difference
between spouses as a prere6uisite for marriage.
(his point was the subject of a constitutional
decision in 0:2:.
It refers to the concepts of &natural&, &marriage& and
celebration) the marriage stands as the foundation of
the legitimate family &defined natural society with such
an e"pression as can be seen from the preparatory
wor/ of the #onstituent 'ssembly, which wished to
emphasi*e that the family has original pre-e"isting
rights even stronger than those of the %tate.
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+ith the reform of the family law of 21;< things
changed in inheritance and property law, since,
for instance, each spouse became the heir of the
other and the spouses shared the family.s
properties. (hese reforms largely eroded the
meaning of marriage understood as a stipulation
of social alliances, and even the issue of social
legitimacy to perform a ritual and so on.
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5arriage lost almost all those aspects of the
nature that were attributed to it by tradition and
therefore lost its aspect of economic discipline
for having a new role, mainly affective, that for
this feature focusing on the development of the
personality of the person who enters into it.
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9owever, the 0:2: #onstitutional court.s
decision has bloc/ed the marriage concept to
older values than modern, especially with its
e"press reference to the naturalness of a
consolidate of a thousand years tradition,
despite the fact that the homose"ual condition
has not been un/nown, as noted by the Italian
#onstitutional #ourt itself in the above-
mentioned judgment 2=4>0:2:.
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In fact this #ourt referred to the debate occurred
in the #onstituent 'ssembly about the drafting of
article 01 of the #onstitution itself, concluding
that, because of the reference to the marriage as
natural society, it does not consider same-se"
unions, but only to traditional institution of
marriage.
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(hese words were used by the #ourt of #assation in
the judgment 3243>0:20 in which the judges overcame
the stereotypes of nature and tradition in recogni*ing a
foreign same-se" marriage effective ?even if not valid@
in Italy. -ven in this case the reference to nature was
inevitable for overturning what the #onstitutional #ourt
stated
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In fact the #ourt of #assation.s judgment
radically disputed the idea that the se" difference
is a natural prere6uisite of marriage. -"plaining
this point, the %upreme #ourt stated that the
naturalistic conception of heterose"ual marriage
is overcome according to the case law of the
-uropean #ourt of 9uman Rights on the
abovementioned 'rticle 20 -#9R, that too/
away any legal significance to the se" difference
between spouses and included same-se"
marriage.
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8evertheless, it has affirmed the right of
homose"uals couples to a &family life& and the
recognition of this right in the specific spheres of
life where it appears relevant, such as health
care, social security, social housing and so on.
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8evertheless, following this decision, and the
conse6uent overcoming of the traditional
concept of nature, some lower courts have tried
to transcribe same-se" marriage celebrated
abroad under the rules of private international
law. 9owever, the issue is still very controversial
because of the silence of the legislature.
5ore recently, the Italian #onstitutional #ourt in
the judgment 8o. 2;:>0:23 stated that a
heterose"ual couple, in which one spouse made
the gender reassingment ?in this case becoming
trangender 5tF@ arises of course, out of the
model of marriage because of the absence of the
re6uirement, essential in the Italian legal system,
of heterose"uality, may not continue as such.
%ince it is connected to the canonical view of the
marriage, the position of the case law of the
#onstitutional #ourt, ?where one third of the
judges receives its politically appointed by the
parliament@ is much more connected with the
ideological positions of certain guidelines of a
religious conservative parties.