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Language as Access to Justice: the Italian Constitution


Feb 21, 2020

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The Italian Constitution was drafted between 1946 and 1947, after the liberation of Italy from Nazi occupation, and decades of fascism. Italian renowned jurist Piero Calamandrei coined the motto ‘clarity of the Constitution’ in a speech given to the Italian Parliament on 4 March 1947: according to Calamandrei, drafting a text which would have been accessible to the widest portion of the population was crucial for the effectiveness of the Constitution. It is not a coincidence that the draft text was submitted to the review of a literary expert, Pietro Pancrazi, before its amendment and approval. As a result, the Italian Constitution is remarkable in the simplicity, and effectiveness of its language. Short sentences, linear structure of phrases, abundance of simple verbal tenses characterised the final text.

Alphabetisation was, at that point of time, an on-going challenge for the fledgling Republic: 59.2% of the population over the age of 14 had no elementary education. Subsequently, the articles of the Constitution employed terms largely belonging to the basic vocabulary, 1002 on a total of 1357, and were also drafted in such a way to result in a very low average length of sentences in terms of number of words. [1] The drafters of the Constitution took great care in making the text accessible to most of the citizens. After all, the very Constitution mandates a principle of equality that is remarkably substantial: Article 3 states that “it is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic, and social organisation of the country.” [2] Arguably, removing such obstacles to equality includes bridging the gap between the least and the most educated. The Constitution was meant for everyone, and was written with this principle at its heart. In Calamandrei’s view, the ease of access to Constitutional norms was maimed at warranting wide participation of the population in public affairs.

Access to justice begins with access to the law. While this is normally understood as availability of legal texts and knowledge, there is no doubt that understanding the law is an important part of the rights implied under the framework of access to justice: as such, language plays a crucial role. It would be probably unreasonable to draft all laws and regulations without significantly employing technical language – however, a Constitution does not belong to the same category. The basic, ground norm of a State is meant to unite, connect, and protect. As such, a Constitution whose language is impenetrable to certain strata of society is bound to foster disenfranchisement. Nevertheless, ease of understanding should not be a characteristic of constitutions only. Cesare Beccaria wrote how obscure norms, if written in a language that is “foreign to the people”, will make the people themselves dependant on the few who have the skills for the necessary interpretation. In Beccaria’s thought, mostly concerned with criminal law, a “larger number of those who will understand and will hold the sacred code of the laws in their hands” warrants less frequent crimes, “because there is no doubt that ignorance and uncertainty of sanctions help the eloquence of passions.” [3] In criminal legal terms, unclear and obscure legal texts would hamper the prescriptive function of the law. Hence, it can be argued that legal provisions should strive to be accessible in their language; however, not much effort is undertaken to simplify the often obscure norms which regulate coexistence in society. While many legal systems are affected by this issue, which appears to be partially unavoidable, it is topical to write on this topic in Bangladesh: in the Situation Analysis performed in 2015 by the Ministry of Law, Justice and Parliamentary Affairs of the Government of Bangladesh, UKAid and the United Nations Development Programme, the conclusions state how “the entire formal justice system uses complicated legal language that non-lawyer members of the public find difficult to understand.” [4]

The Italian legal system is no stranger to this challenge. While the average length of the sentences in the Italian Constitution is low, many legal texts average 120-180 words. [5] Further amendments to the Constitution have not upheld the virtuous effort of the drafters: as an example, a 2001 reform which significantly altered Italian local governance – and, as such, its ease of access was arguably crucial – had such an impact that the average length of the sentences in the Constitution was increased from 14.8 to 20.4 words. [6] Other Italian legal texts, such as the Civil Code, are undoubtedly affected by complex language and lengthy sentences.

Improving accessibility to legal texts is truly an on-going challenge, especially in terms of ease of reading and understanding. With this short article, I advocate for a special care by part of lawmakers, in order to consider the very constituents of the State when drafting laws, particularly when dealing with topics which are sensitive to the least legally educated parts of society. The world owes to Bangladesh, among others, its International Mother Language Day: on its twentieth year, let us remember that Italy was among the supporters of the very first proposal of this occurrence, [7] and perhaps reflect on the importance of language in upholding the fundamental human right of access to justice.

Endnotes

1. Sebastiano Messina in “Il Linguaggio della Costituzione”, 2008.

2. Constitution of the Italian Republic, Article 3.

3. Cesare Beccaria, Opere di Cesare Beccaria, Vol. 1, Milan, 1821, p. 21.

4. Ministry of Law, Justice and Parliamentary Affairs of the Government of the People’s Republic of Bangladesh, UKaid, United Nations Development Programme, “Access to Justice in Bangladesh: Situation Analysis”, Dhaka, 2015.

5. Licia Corbolante, “La Costituzione; 70 Anni Portati Bene”, 2017.

6. Michele Cortelazzo, “La Costituzione: un Esempio di Scrittura che non Ha Fatto Scuola”, 2016.

7. United Nations Educational, Scientific and Cultural Organization, “Draft Report of Commission II”, Doc. 30 C/62, 1999, p. 35.



Tags : Italy , International Mother Language Day , Access to Justice




Antonio Angotti is a Fellow of the Centre for International Law Research and Policy (CILRAP) and a registered attorney in Florence, Italy.