What do we mean by citizenship? The institution whose purpose is not only to recognize, but also to determine the “place in the world” of the person. With Giuseppe Rossi, associate professor of comparative private law at the IULM University of Milan and lawyer at the Foro di Milano, we continue the path of identity following the common thread of law and ethics.
To all appearances, the trial performs the tasks of defining and transforming the identities of the subjects that take part in it. The transformative ambitions of the trial are a consequence of its functional and therefore liturgical-ritual nature.
The trial aims at settling a controversy by means (at least in the Western legal tradition) of the decision of a trusted third entity, the judge. Such decision is the outcome of the debate between the parties. The parties speak in the trial through their lawyers. The lawyers’ role is to grant each party the legal skills needed in order to represent properly his position before the impartial judge.
Therefore, in a trial the role that each person is playing defines her identity, according to the liturgy or the rules of procedure. Respect of the liturgy and the role that it provides for every person participating in the trial is essential in order to grant that the final decision will comply with the law. Actually, the plaintiff is the only party that chooses his role, whenever he decides to revert to the Court. On the other hand, the defendant’s role is entirely determined by the other party, be it a plaintiff that decides to claim legal protection for an alleged right, or the public prosecutor in a criminal trial.
The decision not to take part in a trial, to waive to right of defense, or to refuse the assistance of a lawyer will not allow anyone to escape the trial and its consequences.
Legal systems provide tools to make up for the refusal of legal assistance, or for a mere inaction by a party in a trial. E.g., the Court may decide the case in absentia, or, mainly in criminal cases, appoint a lawyer to defend the party that refused legal assistance.
Issues of identity neither allow anyone to escape the role of defendant in trial, including criminal prosecution, nor avoid the effects of the decision by the Court. Rather, matters of identity may lead to shift on someone else the burden of actually participating to the trial.
In a trial, nevertheless, the function of defining – transforming identity is deeper than the mere aspects stemming from the functional nature and the ritual form of the trial itself.
The trial assumes that the world is legally determined, and that the law has the power to modify it. From a legal perspective, any person, notwithstanding his “real” identity, is a part of this legally defined world, no matter how each person perceives himself, or how others perceive him.
First, the law determines not only each person’s role in the trial, but even the very subjection of each person to the trial. Moreover, it is the law that identifies and empowers the judge. In the wording of the Italian Constitution, for example, the “natural” judge is the judge that the law identifies as competent to deal with a given controversy.
The need of legal assistance, which obliges the party to speak with someone else’s mouth (the lawyer’s), is the manifestation of a transformation which takes place with the mere access of the party to the trial.
Rules of procedure know no “persons” with identities, but “parties” only. Under substantive law, a person is a “legal subject”. The law determines his identity, or, since such identity does exist in fact, it will be material for the decision by the judge only insofar as the law recognizes its materiality. A person’s religion, or nationality, will be material, in a trial, as long as the applicable law deems it to be material.
The law grants citizenship, whose task is not only to recognize, but to determine as well a person’s “place in the world”. Citizenship implies, on the one hand, the grant of both a predefined portfolio of legal rights (e.g. political rights) and duties (e.g. taxpaying, loyalty towards Homeland). On the other hand, citizenship implies an underlying layer of values, and the subjection to a “natural” judge. Courts of a State always have jurisdiction towards citizens of such State.
The trial is the instrument that the law uses in order to try to transform reality. The law aspires to not only determine the central element of identity, that is the way a person “sees” himself, but also further aspects of identity, such as relationships with other individuals and with objects.
Let us think of legally defined-regulated relationships that have the strongest links with identity such as “family”, “couple”, and “filiation”. The oxymoron in the Italian constitutional proviso that defines family as “natural society based on wedding” is emblematic.
The determination of the law to transform, by means of the trial, includes relationships between persons and their surrounding world. Although Australian Aboriginals view of the relationship between humankind and territory is very far away from any idea of “property” or “ownership”, they had to redefine their view, and make it fit with completely alien legal categories, in order to claim protection for the connection with the land before Australian courts.
Nevertheless, if we accept, with some realism, that the law has only a limited power to transform persons and their world by means of the trial, the problem of the relationship between identity and the trial becomes a specific, but not trivial, aspect of the much wider question of the relationships between the law and facts.
One or more aspects of a person’s factual identity (of the way a person actually perceives herself, and/or is perceived by others) may well survive the trial, and its outcome, even when the law applied by the judge deems such aspects to be immaterial at law, or even illegal.
It is realistic to assume that the outcome of litigation on land exploitation before the Australian courts may not have shaped current Aboriginal thought on cosmogony and the role of humankind in the universe. Surely, court decisions did contribute to modifying the Aboriginal’s surroundings, and their own way of living. This way, court decisions compelled the Aboriginals’ identity to face a transformation of the world.
There is not only a dialectic between the law (by means of the trial) and identity, but between reality, as transformed/shaped by the law, and identity.
We can assume that members of family that the law forecloses from access to wedding (such as homosexual families in the Italian legal system, which, as a consequence cannot legally qualify as “family”/ “natural society based on wedding”) – will still conceive themselves as “family”. Maybe, many of their fellow citizens (or the majority of their fellow citizens) will look at them as a “family” although they are not legally one.
On the other hand, even the vaguest idea of “identity” cannot but acknowledge that identity is something fluid: identity is not fixed and unchangeable but it is subject to constant change, just like anything in the universe, including noosphere. The law constantly changes as well, also by means of the relationship between substantive law and the trial.
It may be an oversimplification to assume – with many traditional representations (mostly in civil law countries) – that the legal rule which will govern a specific case always pre-exist the trial, which will lead to the decision of that case. Quite often, the trial shapes the substantive legal rule by means of its dialectic, which confronts different hypothetical legal rules, following a methodology agreed upon by the parties and the judge.
Identity is a possible element of transformation / shaping of legal rules by means of the trial, at least insofar it is possible to translate it into rhetorically correct legal arguments, starting from the premises of a given legal system.
In the trial, identity and law both aim at transforming each other. This may lead to conflict or to communication. It depends on how much the parties and the judge agree on the rhetorical method which will guide the dialectic between arguments, and which will lead to the actual shaping of legal rule for the case at stake, at the real outcome of the trial.