the bearable ambiguity of the constitutional text – arguing, bargaining and persuading in...

The Bearable Ambiguity of the Constitutional Text

Arguing, Bargaining and Persuading in the Italian Constituent Assembly

ECA Lisbon 2015 Giovanni Damele [email protected]

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

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Giovanni Damele [email protected]

«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»


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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”.


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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


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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”.


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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”


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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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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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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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!  “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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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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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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!  “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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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.


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the bearable ambiguity of the constitutional text – arguing, bargaining and persuading in...

Law

giovanni damele

threatbased bargaining

passion arguing

persuasion arguing

persuading passion

constitutional text

strategic actors

strategic use of impartiality