Legal reasoning and stereotypes in the case

law from a comparative law perspective

By Elena Falletti

Pattern of judgments
Civil law systems
- French model: le juge est-il le bouche de la loi
- German model: describing the complexity of
the legal reasoning according to their
philosophical and systematic tradition
Common law systems: detailed legal
reasoning according to the distinguishing
principle

The stereotype of nature

The stereotype of nature

Nature as tradition

Italian constitutional court's decision 138/2010

The stereotype of nature

Italian Court of
Cassation's decision
4184/2012 disputed
the idea that sex
difference is a prerequisite of marriage
according to Article
No. 12 ECHR
concept of family life

The stereotype of nature

The stereotype of nature

Italian Court of
Cassation, decision
No. 2400/2015.
Overcoming the
stereotype of nature
and focusing on the
principle of nondiscrimination

The recognition of legal effects to

both same-sex civil partnerships
(same-sex couples cannot
marry) and married heterosexual
couples is not based on antidiscrimination principle, but on
the recognition of a common set
of rights and duties of assistance
and solidarity to both same-sex
and heterosexual co-habiting
couples. Only the Parliament can
do it.

The stereotype of nature

1999: House of Lords 2004: House of Lords

about the term of
Procreative potential
spouse:
is not a prerequisite
Security of tenure for
resisting the
temptation to change the survivor of the
a bad law by giving a couple is a legitimate
purpose
of
a
social
new linguistic twist

nature

The stereotype of nature

2013 UKSC:
religious
beliefs/sexual self
determination
2014 EWCA
indecent - insulting
behaviour between
servant prisoners.

2013 UKSC
Continuing legacy
of those centuries
of discrimination,
persecution even,
still going on in
many parts of the
world

Parenthood, religion and same-sex

issues

2013 Italian Supreme Court

of Cassation:
An aggressive Muslim
father, a homosexual mother
and a shocked little child
The judges confirmed the
exclusive custody to the
mother condemning the
possible alibi evidence of
cultural and religious
violence.

Pre-giudizio:
- prejudgment
- prejudice

Parenthood, religion and same-sex

issue

2014 Juvenile Court of

Rome: Homosexual
parenthood is a divergent
parenthood but equally
healthy and worthy

2011 Court of First Instance of

Turin: express reference to the
concepts of father, mother,
husband and wife for
traditional heterosexual
concept of family members
2014 Court of Appeal of Turin
the parent-child relationship
allows several figures: the
biological mother, the social
mother, the genetic father or
other social figures

Parenthood, religion and same sexissues

2013 EWHC: double

stereotypical prejudice
- ethnic (Roma)
discrimination suffered by
the parents
- discrimination alleged
by the parents
themselves against the
homosexual foster
parents

Justice Munby: The

parents' views, whether
religious, cultural, secular
social, are entitled to
respect but cannot be
determinative. They have
made their life in the UK
and cannot impose their
own views either on the
local authority or on the
court.