Academic journal article Journal of Research in Gender Studies

Judges and Stereotypes on Same-Sex Issues: Analysis of Case Law from a Comparative Perspective in English and Italian Family Law

Academic journal article Journal of Research in Gender Studies

Judges and Stereotypes on Same-Sex Issues: Analysis of Case Law from a Comparative Perspective in English and Italian Family Law

Article excerpt

1. 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. On the contrary, in Germany, according to the systematic and philosophical tradition, judges often describe the complexity of their logical and juridical reasoning. In the Common Law System in the case law method the "direct presence of facts distinguishes reasoning with previous decisions in the 'classical' common law context from reasoning statutes or the constitution" (Komárek, 2013, 157; Siems, 2014, 41), furthermore judges have to detail each logical step according to the distinguishing principle. According to this pattern of judgments it is possible to find gender stereotypes in the legal reasoning because the pattern of decisions allows judges to express their own opinions in "rainbow families" cases.

The aim of this paper is the analysis of gender stereotypes in family case law, especially to the traditional gender roles: male-female, husband-wife, father-mother. Indeed, analyzing 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 (Timmer, 2015, 240). But what is a "stereotype"? Especially a "gender stereotype"? It concerns the sex of a person, especially his or her failure to conform with socially accepted sexual behavior about what "real" men or women do or don't do (D. A. Widiss, E. L. Rosenblatt, D. NeJaime, 2007, 249).

This research would point out through a comparative methodology that on the one hand stereotypes are useful to a conservative Parliament to maintain a political interpretation of the tradition, and on the other hand how courts are trying to adapt laws to contemporary society, especially in terms of family and social evolution. Without the intervention of legislature, tradition is hard to overcome in the Italian positive legal system. Indeed, the European Court of Human Rights highlighted that, despite some attempts over three decades, the Italian legislature has been unable to enact the relevant legislation on same-sex couples.1 In this perspective, the European Court of Human Rights stated that:

a deliberate attempt to prevent the implementation of a final and enforceable judgment2 and which is, in addition, tolerated, if not tacitly approved, by the executive and legislative branch of the State, cannot be explained in terms of any legitimate public interest or the interests of the community as a whole. On the contrary, it is capable of undermining the credibility and authority of the judiciary and of jeopardizing its effectiveness, factors which are of the utmost importance from the point of view of the fundamental principles underlying the Convention."3

This effort is pointed out by comparing the Italian case law with the English one. In the English legal system the binding precedent rule on the one hand allows confirming the certainty of law, while on the other hand distinguishing principle allows the law to evolve in accordance with the evolution of social and family life.

2. The Concept of "Nature" in the Italian Legal Culture

In the legal debate usually the concept of nature is used to mask the concept of tradition and the conservative bond with behaviors and situations run during the history of society. This scheme is realized mainly in the context of discussions about the bioethical issues that by their very essence are located on the border between a traditional concept, linked to the conservation of "nature," and an innovative idea linked to social and technological innovation instead transformation or change the "nature" hitherto known. …

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