Argumentation, negotiation and persuasion in constitution-making processes

Argumentation, negotiation and
persuasion in constitution-making
processes
Giovanni Damele giovanni.damele@fcsh.unl.pt 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 polarized
than 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 Subcommission
!  Art. 1 (later 23, later 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 (later 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 (later 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 (later 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.

Argumentation, negotiation and persuasion in constitution-making processes

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