The Italian Constitution: Still Young at 70

The acceleration of social life, in part due to scientific and technological progress, has often led to demands for new civil rights, which impinge upon ethics and fundamental values. The Italian Constitution, which turned 70 this year, offers interesting margins for legal progress, even in its initial part, which is not amendable. Think of Article 2, which recites: "The Republic acknowledges and guarantees the inviolable rights of man, both as an individual and in the social formations where human personality unfolds..." Here the personalist principle, which is interwoven with pluralistic and solidaristic tenets, emerges as the cornerstone of our Basic Law. The undisputed legal primacy of the individual over the state puts the latter in the service of the former, something that reflects the ultimate goal of constitutionalism. The inviolability of fundamental rights limits the exercise of government power.

But what kind of rights is the Constitution referring to? A large part of legal doctrine considers Article 2 as open-ended, meaning that it also covers new individual rights that are not expressly listed in the text, which are specified in Article 13 and the following articles. On the other hand, also the contending judicial doctrine that considers Article 2 a closed norm, in the sense that it simply summarizes the rights enunciated in the rest of the Constitution, does not support the "casting in stone of the catalog of constitutional rights," but rather that they should be given an updated reading, while complying with the constitutional dictum (Pace, 2003).

An intermediate position is taken by those who believe that legal interpretation made in conjunction with Article 2 and other specific constitutional provisions can enable the recognition of individual and social conditions "seeking tutelage." Ultimately, beyond the ideological starting positions and regardless of the methodological paths followed, the majority of legal scholars agree in principle, if not in the acknowledgment of new rights, in admitting the emergence of unanticipated dimensions of traditional liberties that are in need of constitutional protection. Indeed, even the Italian Constitutional Court seems to have reached the same conclusion. In the first phase of the history of their jurisprudence, constitutional justices put forward a restrictive interpretation, which made Article 2 a closed clause, i.e. a mere reference to subjective legal positions codified elsewhere in the Constitution. In the second half of the 1980s, however, such interpretive rigidity was considerably softened, as the legal arguments of what Italians call la Consulta ceased to insist on the mere summarizing function of Article 2.

This change in approach was also reflected in the words of late President Saja, who, in his 1988 annual report, emphasized the increased attention given by constitutional judges to the transformation of social norms, underpinned by an expansive interpretation of constitutional law, increasingly read in conjunction with Article 2, in order to find constitutional backing if not for new civil rights, at least for unprecedented dimensions of old ones. The U-turn of the Constitutional Court on the issue of sex change, for instance, was emblematic. The right to sexual identity, if not expressly codified by Italy's fundamental legal text, was put in relation by the Court with Article 32, which protects not only the physical, but also the psychological health of the individual. By supporting the therapeutic relevance of sex change for individuals experiencing psychological distress, since they feel they belong to a different gender from the one that was legally assigned to them, the Court recognizes and guarantees the right in question as essential to the full and free development of the individual. In more recent times, this trend has been confirmed: the Court's jurisprudence seems increasingly attentive to the progress of science and the evolution of social norms. This is made explicit in the rulings where the Court includes same-gender unions in the social formations cited in Article 2, or strikes down the legal prohibition on artificial insemination, again citing Article 2 in conjunction with Articles 3 and 31, by saying that the choice to become a parent is fundamental for individual self-determination.

Beyond the efforts of constitutional jurisprudence, it is up to lawmakers not only and perhaps not so much to certify new rights (which must always strike a balance with existing ones and entail corresponding duties and responsibilities), but rather to guarantee the broadest protection of fundamental rights, that is those that are considered inviolable because they are closely linked, indeed intrinsic, to the dignity of human beings.