The Weight of Tradition
In the increasingly complex landscape of controversies on fundamental rights, the notion of tradition emerges today as a particularly relevant area of legal and cultural debate. The concept of tradition is intimately linked to that of law. Law itself can be interpreted as a tradition, maintained and preserved as a pool of legal solutions suitable for regulating social behaviors. In recent times, however, constitutional and supranational courts have begun to openly deal with traditionalist reasoning, that is, based on the need to respect tradition, sometimes embracing it, sometimes criticizing it.
This growing attention raises crucial questions: what role should tradition play in the decision-making process of the courts? Can tradition justify limits on the rights of historically discriminated groups?
The topic is, today, especially relevant to define the contours of the right of same-sex couples to form a “traditional” family, in the sense of one founded on a bond recognized by law and aimed at raising children.
Some recent cases provide significant insights into this tension between tradition and changing social customs. The US Supreme Court has, especially in recent years, taken positions that reflect a certain deference to tradition in matters of women’s rights, closely followed by the Constitutional Court of Uganda, which expressly cited the American precedent, translating its reasoning in a controversy over the rights of homosexual persons. The European Court of Human Rights, for its part, has stated that support for the traditional family can constitute a legitimate reason for differentiating the treatment of couples based on their sexual orientation.
On the other hand, the Inter-American Court of Human Rights has invited governments to fully recognize the rights of homoparental families, stressing that tradition, culture and religion cannot be invoked to justify discriminatory practices. In Europe, the German and Slovenian Constitutional Courts have shown, with different arguments, a more critical sensitivity towards the use of tradition as a normative parameter.
In this context, a comparative and interdisciplinary reflection on the scope and limits of the use of tradition in contemporary law becomes increasingly urgent (“The tradition trap and the rights of same-sex couples”, in Asian Journal of Comparative Law, forthcoming 2025, 1-46, with Stefano Osella). Some significant indications come, for example, from the Hong Kong Court of Appeals, which has clarified that traditionalist reasoning presents a “circular” logic since it ends up justifying the need to perpetuate tradition – the exclusion of homosexual couples from the full enjoyment of rights related to the family sphere – on the basis of the intrinsic goodness of a past which becomes normative, that is, capable of influencing the legal discipline of the present.
In this context, the Italian Constitutional Court first qualified marriage as a millenary tradition that recognizes the bond between people of the opposite sex aimed at procreation and the raising of children, justifying in this way the limitation of the right to marriage for homosexual couples. In more recent years, the Court has instead clarified that a reinterpretation of the more traditional institutions of family law may be necessary in light of the profound sociocultural changes that contemporary democracies are undergoing (Constitutional Court, 22 February 2024, ruling no. 66). The case concerned a homosexual couple in a civil union who became heterosexual after the transition of one of the partners. The Court held that the automatic dissolution of the union violated the claimant's rights, allowing its temporary maintenance. The case demonstrates that traditional legal reasoning is today approached with an ever-increasing awareness of its intrinsic logical-rational weakness.