The Bearable Ambiguity of the Constitutional Text – Arguing, Bargaining and Persuading in the Italian Constituent Assembly

The Bearable Ambiguity of the
Constitutional Text
Arguing, Bargaining and Persuading in
the Italian Constituent Assembly
ECA Lisbon 2015Giovanni Damele giovanni.damele@fcsh.unl.pt

The process of constitution-making can illuminate two
types of speech acts: arguing and bargaining
!  the matters that have to be decided are far removed
from petty, self-interested, routine politics
!  constituent assemblies are often more polarized
than ordinary law-making bodies
Arguing, Bargaining and Persuading
ECA Lisbon 2015
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Giovanni Damele giovanni.damele@fcsh.unl.pt

«Rational argumentation on the one hand, threats and
promises on the other, are the main vehicles by
which the parties seek to reach agreement. The
former is subject to criteria of validity, the latter to
criteria of credibility»
ECA Lisbon 2015
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The role of rational argument
!  “Validity claims”
!  propositional truth
!  normative rightness
!  Sincerity
!  “Types” of arguments
!  Consequentialist: “appeal to overall efficiency”
!  Deontological: “appeal to individual rights”.
ECA Lisbon 2015
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!  The two original Habermasian commitments to truth
and impartiality can coexist with a strategic use of
impartiality and sincerity: “a strategic uses of
purportedly non-strategic argument”.
!  Even he actors whose concerns are purely self-
interested may be forced or induced to substitute the
language of impartial argument for the language of
self-interest;
!  civilizing force of hypocrisy
ECA Lisbon 2015
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Threatbased bargaining
!  Extra-parliamentary resources - money, manpower,
and foreign allies ;
!  Parliamentary resources: vote-trading or logrolling,
strategic use of the institutional framework.
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Strategic actors may also find useful to substitute truth
claims for credibility claims.
“Instead of making a threat whose efficacy depends on
its perceived credibility, they may utter a warning
that serves the same purpose and avoids the
difficulties associated with threats”.
Threats, “are statements about what the speaker will
do”, while warnings are statements “about what will
(or may) happen, independently of any actions taken
by the speaker”.
ECA Lisbon 2015
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Third type of “speech acts”:
rhetorical statements aiming at persuasion
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!  Arguing - “reason speaks to reason”
!  “rational argumentation”
!  strategic use of impartial arguments
!  Bargaining - “interest to interest”
!  negotiations based on threats,
!  negotiations based on warnings.
!  Persuading - “passion to passion”
ECA Lisbon 2015
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ECA Lisbon 2015
!  Assemblea Costituente (1946-1948)
!  constitutional compromise
!  tensions inherent in the antifascist parties: christian
democrats, social-communists, liberals
!  political clash – 1948 general elections
!  civil war
!  foreing intervention
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ECA Lisbon 2015
!  Assemblea Costituente (1946-1948)
!  Constitutional Commission divided into three sub-
commissions:
"  Rights and Obligations of the Citizens, chaired by Umberto Tupini
(DC)
"  Constitutional Organization of the State, chaired by Umberto
Terracini (PCI)
"  Economical and Social Relationships, chaired by Gustavo Ghidini
(PSI)
!  “Committee of the 18”: charged of writing the draft of the
constitution in accordance with the work of the three sub-
commissions.
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ECA Lisbon 2015
!  Art. 29 of the Italian Constitution
“The Republic recognizes the rights of the family as a
natural society founded on matrimony”
“Matrimony is based on the moral and legal equality of
the spouses within the limits established by law to
guarantee the unity of the family ”
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ECA Lisbon 2015
First Subcommission
!  two rapporteurs:
!  Nilde Jotti (communist)
!  Camillo Corsanego (christian democrats)
!  Giuseppe Dossetti: “for us, the issue we are debating
[indissolubility of marriage] is the more fundamental issue of
the Constitution”
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ECA Lisbon 2015
Draft of the First Subcommission
!  Art. 1 (later art. 23, now art. 29)
!  The family is a natural society and the State recognizes its
rights with the aim of increasing the moral solidarity and the
prosperity of the Nation
!  Art. 2
!  Matrimony is based on the moral and legal equality of spouses.
The spouses have the right and the duty to support, instruct
and educate their children
!  The law establishes the juridical condition of spouses, in order
to guarantee family unity.
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ECA Lisbon 2015
Draft of the Constitutional Commission
!  Art. 23 (now art. 29 and art. 31)
!  The family is a natural society and the Republic recognizes
its rights for ensuring the fulfillment of its mission and with
the aim of increasing the moral solidarity and the prosperity of
the Nation
!  The Republic guarantees to the family the economic conditions
necessary for its establishment, defense and development, with
particular regard to large families
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ECA Lisbon 2015
Draft of the Constitutional Commission
!  Art. 24 (now art. 29 and art. 30)
!  Matrimony is based on the moral and legal equality of spouses.
!  The law establishes the juridical condition of spouses, in order
to guarantee the indissolubility of matrimony and the
unity of the family.
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ECA Lisbon 2015
Draft of the Redaction Committee
!  Art. 23 (now art. 29)
!  The Republic recognizes the rights of the family as a natural
society founded on the indissolubility of matrimony
!  The matrimony is ruled on the base of the juridical and moral
equality of spouses, within the limits required in order to
guarantee the unity of the family
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ECA Lisbon 2015
Strategy
!  The “objective strategy”
!  teleological arguments, based on the necessity to protect the
unity and avoid the “disintegration” of family (Corsanego)
!  arguments from general principles (La Pira, Dossetti)
!  appeal to the authority (La Pira)
!  reference to the historical and cultural context (Lelio Basso,
against the introduction of the expression “natural society”)
!  appeal to popular opinion (Corsanego) and to popular
practices (Umberto Nobile, a contrario)
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ECA Lisbon 2015
!  “Ancillary” strategy: ad hominem attacks
!  Allusively based on tu quoque and ad personam arguments
!  A third strategy based on a strategic use of an
ambiguous reformulation of the original draft, as a
result of an (argumentative) bargain base on vote
trading.
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ECA Lisbon 2015
Incompletely theorized agreement
“Something that originates when there are conflicting
opinions on the common good and concludes with
participants agreeing on a single outcome, but for
different reasons” [Mansbridge et al. 2010].
This peculiar method of statute-making, aiming at
reduce the potential for conflict, is based on an
agreement on abstractions, to which does not
correspond an agreement on the particular meaning
of those abstractions [Sunstein 2006]
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ECA Lisbon 2015
In collective agents like legislatures, people “confront
multiple situational requirements, develop multiple
and often conflicting goals, and respond with
communicative strategies which do not always
minimize ambiguity, but may nonetheless be
effective” [Eisenberg 1984].
The strategic use of ambiguity is a way not for
minimize, but for managing disagreement and
idiosyncrasy
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ECA Lisbon 2015
!  “Normative text”: a set of normative statements
!  “Norm” stricto sensu: the interpretation of the
normative text, made by an authorized interpreter
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ECA Lisbon 2015
This kind of agreement is, actually, an agreement on
the normative text, and not on the norm itself.
Constitution-makers can move strategically in order to
find a solution on a sufficiently ambiguous
normative text,
The normative text allow for multiple interpretations
The main consequence is an increase of discretionary
power of the interpreters [Tarello 1980]
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!  Elster, J. 2000. Arguing and bargaining in two Constituent
Assemblies, “University of Pennsylvania Journal of
Constitutional Law”, 2.
!  Eisenberg, E.M. Ambiguity as Strategy in organizational
communication, in Communication Monographs, vol. 51,
Sept. 1984.
!  Mansbridge, J. et al. The Place of Self-Interest and the Role of
!  Power in Deliberative Democracy, in “Jour. Political
Philosophy”, 18 (1),
!  Sunstein, Cass. 2007. Incompletely Theorized Agreements,
“Constitutional Law. Social Research” 74 (1): 1-24.
!  Tarello, Giovanni. 1980. L’interpretazione della legge.
Milano: Giuffrè.
ECA Lisbon 2015
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The Bearable Ambiguity of the Constitutional Text – Arguing, Bargaining and Persuading in the Italian Constituent Assembly

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The Bearable Ambiguity of the Constitutional Text – Arguing, Bargaining and Persuading in the Italian Constituent Assembly