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Argumentation, negotiation and persuasion in constitution-making

processes

Giovanni Damele [email protected] ArgLab Research Colloquium, April 8, 2014

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

polarizedthan ordinary law-making bodies

Argumentation, negotiation and persuasion


role of rational argument / threatbased bargaining

bargaining on the basis of extra-parliamentary resources;

even the 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



third type of speech acts:rhetorical statements aiming at persuasion

«I distinguish among reason, passion and interest as motives of speakers in constitutional or legislative assemblies. Applying the same distinction to the motives imputed by the speakers to their audience, rhetoric may perhaps be defined by the feature that its practitioners appeal to the passions of their audience rather than to their reason or self-interest. In some debates, reason speaks to reason: in others, interest to interest; in still others, passion to passion».



«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»

a speaker who aims at achieving understanding rather than success is committed to three validity claims: propositional truth, normative rightness, and truthfulness [Habermas]

Veil-of-ignorance argument





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



Assemblea Costituente (1946-1948) Constitutional Commission (75 deputies) 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.



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 ”



Draft of the First SubcommissionArt. 1 (then 23, then 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.



Draft of the Commission of 75

Art. 23 (then 29/31) 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



Draft of the Commission of 75

Art. 24 (then 29/30)

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.



Draft of the Redaction Committee

Art. 23 (then 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”



Well-functioning constitutional orders try to solve problems through incompletely theorized agreements. Sometimes these agreements involve abstractions, accepted as such amidst severe disagreements on particular cases. Thus people who disagree on incitement to violence and hate speech can accept a general free speech principle, and those who argue about same-sex relationships can accept an abstract antidiscrimination principle. This is an important phenomenon in constitutional law and politics; it makes constitution-making possible.



Constitution-makers can agree on abstractions without agreeing on the particular meaning of those abstractions.

[Sunstein 2006]

Agreement on the normative text, which can be regarded as a delegation of powers to the bodies in charge of interpreting the statutes

[Tarello 1980]

Elster, John. 2000. Arguing and bargaining in two Constituent Assemblies in University of Pennsylvania Journal of Constitutional Law, 2

Sunstein, Cass. 2007. Incompletely Theorized Agreements in Constitutional Law. Social Research 74 (1): 1-24.

Tarello, Giovanni. 1980. L’interpretazione della legge. Milano: Giuffrè.

