Equality, that stranger. By Vito D’Ambrosio

Vito D’Ambrosio – Former magistrate and member of the CSM (Supreme Judicial Council)

Article 3 of the Italian Constituion concerns equality, and it is not easy to arrive at an adequate interpretation which transcends the sort of banal reading which would make it the basis for an obtuse egalitarianism. The text reads: “All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions”.

It is the task of the Republic to remove obstacles of an economic and social order which, by limiting in real terms the freedom and equality of the citizens, prevent the full development of the individual and the effective participation of all workers in the political, economic and social organization of the country.

It is worth bearing in mind Don Milani’s observation regarding the injustice of making unequal parts among equals, but also equal parts among unequals: if a school canteen offers the same portion of soup to all the children, irrespective of their different states of nutrition, it is committing an undeniable injustice, less glaring but maybe more stinging in actual fact. Article 3 is of great importance, from both a juridical-constitutional and a psychosynthetic point of view. To begin with, we should note that the first part of the Article asserts the principle of equality in its broadest sense, transcending a literal interpretation at the point where it would seem to be restricted to citizens alone, whereas in fact the jurisprudence of the Constitutional Court has long recognized that the principle of equality is also to be applied to non-citizens, residents (see the extensive citations in ruling no. 186/2020). Furthermore, the mention of race – obsolete from a scientific point of view – was and continues to be necessary following the 1938 enactment by the fascist regime of the laws for the defence of the race. (For similar reasons, and in an attempt to offset the risk of a repetition of the horrors of the Second World War, it crops up again both in the Universal Declaration of Human Rights, adopted by the United Nations in 1948, and in the European Convention on Human Rights of 1950, and in the European Union Charter of Fundamental Rights, proclaimed in 2000 and acquiring full legal status with the entry into force of the Treaty of Lisbon in 2007). The first paragraph is followed by a second which on the one hand recognizes the existence of obstacles to effective equality and on the other commits the Republic to overcoming these obstacles. The analysis of this second paragraph has long engaged jurists and legal practitioners and, in my view, needs to be very carefully gauged; so it is worth spending a moment or two to consider it.

The second paragraph of Article 3 moves on a twofold plane. The first expressly recognizes that the principle of equality – solemnly proclaimed just a line or two above – is not fully effective; in other words, it admits that in Italy there is not (yet?) true and general equality among citizens. The Article then moves onto a further plane, assigning to the Republic the task of removing those obstacles which prevent true equality, and concludes by recognizing the privileged role of workers, all workers, in the organization of the country.

Leaving aside the claim, put forward in the early decades of the Constitution especially by legal practitioners, that this paragraph was a sort of “super ruling” and should condition the entire work of interpreting and applying the Constitution – a thesis rejected by the Constitutional Court which does not recognize any grading of principles in and of the Constitution – the importance of the twofold declaration remains: the first is fundamental in attesting to the distance between theory and reality in the matter of equality; the second is fundamental in assigning (self-assigning would be more accurate) to the Republic the TASK of acting to remove the obstacles to equality. This paragraph – with its implications rapidly touched on – is undeniably different from similar contemporary texts from other Western democratic countries. And that is all that needs to be said here, from a legal point of view.

What remains to be examined in conclusion is the question of the TASK. What does it mean to assign, or self-assign, the task of building a bridge between theory and reality? How can the task be carried out in a legal context? To whom is the task assigned, and by who? This cluster of questions bears on the argument and renders it more complicated, but the answers do not seem to me to be (particularly) difficult.

To begin at the beginning, the identity of the subject invited to take on the task specified in the Article is crystal clear. The subject, from the letter of the text, is the Republic. But the Republic is a completely empty, abstract identity unless we fill it with all the subjects which go to make it up. And those subjects include all of us, and each of us, because the Republic is the broadest totality, mentioned in numerous passages of our Constitution, starting with the title itself, “Constitution of the Italian Republic”. So, in essence, the task has been entrusted to each of us, and the fulfilment of this task is demanded of us by the Constitution, and gives tangible form to our duty as citizens of this Republic. As for our behaviour in concrete terms, there is no need for particular explanations: it is sufficient to intervene whenever we come up against cases where the principle of equality is being violated, and ask – indeed, demand – that the situation be changed so as to bring it into line with the Constitutional precept. As for the question of the legitimacy of the agent requiring our intervention, the answer, very simply, is that the pressing demand comes from, and involves, our will.

Finally, it should be noted that the linking of the two parts of Article 3 can be read as a concrete example of the cultural and political roots underlying the Constitution. In fact the first paragraph traces its origins in the main to the most classical version of liberal theories, but also to a number of Marxist reflections, as well as featuring in the more modern versions of Christian doctrime, especially the personalistic version, stemming from the studies of certain French philosophers, in particular Maritain and Mounier. But the second paragraph belongs (almost) exclusively to the social and political thinking proper to Marxist doctrine, and to others derived from it.

These statements need to be set alongside Pope Francis’s recent encyclical, “Fratelli Tutti” (All Brothers). The Pope who, by his own account, comes from the “ends of the Earth”, is trying prophetically to rediscover among the foundations of the Church (understood as a structure with its own organization and hierarchy) those parts of the Christian message which should sanction the very existence of a Church. In carrying out his task, he has encountered more and more determined hostility from those who feel very comfortable with the present ecclesiastical structures and who turn their heads and look away when the structure starts to creak because of the rot within. It has been said that paradoxically this Pope is more popular with non-believers than with Catholic believers (or self-styled Catholics). Fortunately this claim is, I trust, not true, even though he is much less appreciated within the hierarchical Church than among those ecclesiastical orders closer to the world of the less fortunate, amply represented in Pope Francis’s two most recent encyclicas, “Laudato si’” (Praise be to you, my Lord) and “Fratelli Tutti” (All Brothers) which the believers who are with Francis see as a lucid and thorough “contextualization” of Christ’s message. With this in mind, I want to remind readers of Pope Francis’s thoughts, printed on the back cover of the edition published by the Libreria Editrice Vaticana: “Come, Holy Spirit! Display to us your beauty reflected in all the peoples of the Earth, so we discover that all are important, all are necessary, that they are different faces of the same humanity loved by God”.

On a point of such cardinal importance, the like-mindedness of our (and not just our) Constitution and a text penned by the highest ecclesiastical authority of the Catholic world is truly remarkable – an observation which in no way seeks to breach the indisputable neutrality of our fundamental Charter on this point.