The constitutionalization of family law is a phenomenon that can be traced back to at least the major wave of constitutional drafting that began in the mid-20th century, when many countries first included basic provisions relating to the family in their constitutional texts. But the expansion of the constitutional incidence on the family, at least in Europe and North America, began in earnest in the 1960s and ‘70s, as rapidly shifting social realities entailed profound transformations in both the conception of the family itself and the relationship between the family and the state.[1] In addition, beginning in the 1970s, international human rights law began to have a much more pervasive and penetrating influence on national law in general, including on family law and constitutional law. Treaties such as the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child represented and promoted a dramatically different idea of family and state and their interrelationship, as well as of the idea of human rights themselves. International courts and non-judicial monitoring bodies increasingly have used international norms to promote, and sometimes to compel, significant shifts in domestic constitutional systems’ approach to the family. In addition, the borrowing of constitutional norms and languages from other legal systems, in the processes of legal reform, has also contributed to the growth in the scope, and evolution in substance, of the constitutional regulation of the family.
This evolution of the treatment of the family in constitutional law, and not merely within the realm of family law, which traditionally has been regarded as a branch of private law, should be of direct interest to us in this Plenary, dedicated to the family as a “relational good”, for a variety of reasons. First, the constitution is by definition one of the central vehicles for the expression and inculcation of a society’s basic values, the principles by which it seeks to order activity toward the common good. For as long as there has been some critical examination of comparative law it has contained the recognition that constitutional orders have a profound effect on the character of the communities governed by them – for instance, consider the Athenian Stranger in Plato’s Laws. The fundamental principles and rules of governance – nowadays typically, though not necessarily, written and codified into a single document – not only express the values and ideals of a community but, more importantly for our purposes, they help to constitute them. They are instruments for generating and giving temporal continuity and stability to a certain vision of society. Thus, what constitutional law expresses about the family’s role in human flourishing, the relationships among family members, the connections between the family and society more generally, the power and the responsibility of the state with respect to the family, and so on, can have a profound and enduring effect on our way of conceiving, imagining, and acting in the real, of family affairs and structures and relations.
Finally, but perhaps most fundamentally, we should be attentive to the constitutionalization of the family and of family law because it is principally through constitutional law that the family intersects with and is shaped by the language and conception of rights – human rights, individual rights, collective rights, social rights, fundamental rights. Rights talk today represents the most pervasive, and perhaps really the only, cross-cultural, globally extended, lingua franca for addressing basic questions of human dignity, of social ethics, of the nature of human freedom and responsibility, of justice, and of the common good. For better and for worse, the discourse of rights is shaping the family profoundly, and this is happening primarily through the constitutionalization of family law (including through the constitutional internalization of international human rights law).
Moreover, we know well by now that within the discourse and practice of human rights there exist a multiplicity of different dialects, partially overlapping but often also diverging, even diverging irreconcilably. There is no one uniform notion of what rights are, where they come from, and what they entail, but a plurality of approaches that in turn embody more basic first premises of both philosophical anthropology and political philosophy. Those divergences, in turn, can have tremendous impacts on human well-being. Pope Francis himself, while consistently championing the universality of basic human rights and appealing regularly to the need to respect human rights, especially for the most vulnerable and marginalized, has also and simultaneously been a consistent critic of those conceptions of rights that lead to a distorted and corrupted understanding of justice and social love (I will return to this point in the conclusion).
In short, in constitutional law rights and families intersect in ways that allow the different dialects of human rights to shape the family, and from the way that constitutional rights and the family are intertwined in different constitutional systems we can glean important insights into how family, state, and society are being shaped and continuously reconstituted in the public imagination. Of more specific relevance to this Plenary discussion, we can see in constitutional law differences between those treatments of family and rights that foster, or allow, a more holistic approach to the family as a relational good, as opposed to those treatments that tend either to subordinate the family to the state or to reduce it to a bundle of intersecting individualistic and autonomous interests.
Notwithstanding the central importance of this area, it is surprising to find that very little scholarly attention has been paid to the constitutionalization of family law. A number of single-country studies have dealt with the dynamic,[2] but there has been very scarce attention to the question in a comparative framework in the last 30 years, and even less so on an inter-regional or global scale.[3]
Accordingly, it is necessary to begin from a comprehensive analysis of the primary sources. In this presentation I offer initial observations and tentative conclusions from the collection and analysis of the treatment of the family in the constitutional texts of every country in the world (197 states).[4] In these constitutional texts collectively, I have identified and mapped 65 distinct kinds of provisions through which they engage the family and provide for rights associated with the family (sometimes phrased in somewhat different language, naturally), which can be grouped into four large thematically-related areas: structural provisions regarding the role of the family in society and in the nation generally; provisions that address the intersection of criminal law and the family; the rights of the family as a group unit and of individuals as members of families; and the duties associated with families, including duties of the state toward the family, duties of family members toward one another, and duties of the family and its members toward the state or society as a whole. Examining evidence of patterns among them, I seek to distill an initial taxonomy of the principal approaches to the family in constitutional law, revolving around two axes: (a) the characterization and structuring of the relationship between the family and the state; and (b) the conceptualization of rights, both rights of persons within the family unit and rights of families as groups in society. Given the aims of this Plenary, I pay special attention to those approaches that can be understood to present a view of the family and its relationship to the state that are more oriented toward the family as a good constituted by fundamental set of constitutive relationships, where individual rights and responsibilities are reciprocal, and where the collective rights of the family vis-à-vis the state reflect understanding of the family as a fundamental good of society that both preexists the state and that consists of a constitutive set of interdependent relationships.
Of course, constitutional texts alone can only be a starting point of analysis, for constitutional practice often adds to or diverges from what the bare textual basis of the law might indicate. For this reason, the analysis then proceeds to a smaller number of selected constitutional jurisdictions to look at some of the major judicial decisions interpreting and applying the relevant constitutional provisions on the family. Here I cannot be as comprehensive of all constitutional jurisdictions and I have instead focused only on a small number of examples which confirm that a more relational understanding of the family and of the rights associated with the family is evident in constitutional practice and experience.
Constitutional texts
A few global observations regarding constitutional provisions on the family can aid in setting the general context for the more specific conclusions that follow. First, there is a wide range in the frequency of references to the family in different constitutions. Of 197 constitutions, only 18 have no provisions at all regarding the family; others have as many as 28-30 provisions; the average is about seven. The frequency does not appear to have any discernible relationship to the geographic region of the world, the applicable legal tradition, the dominant religion(s) of the country, the political and economic system that prevails in it, or any other identifiable variable, except that there is however a small but potentially interesting correlation to the date of the constitution: constitutions adopted prior to 1970 contain an average of only about four references to the family, while constitutions adopted in the 1970s or later show a leap in the constitutional attention to the family, with the high point being from the period of 1980-1999, when that average was doubled to eight. Since 2000 there seems to have been slight decline but it is difficult to tell whether that is statistically meaningful. Secondly, of the 65 different types of constitutional provisions relating to the family, by far the most common one is some sort of generic language stating that the family is to receive the protection of the state, found in 126 constitutions. No other provision is common to a majority of constitutions of the world, but several other types of provisions can be found in 30%-40% of constitutions:
(a) some sort of statement to the effect that the family serves an important structural role with respect to the society or nation as a whole – for example, “the family is the fundamental basis for society” (El Salvador) or “the family [is] fundamental to the preservation and growth of the nation” (Estonia);
(b) an explicit grant of power to the state to legislate with regard to the family;
(c) a personal right to found a family;
(d) a guarantee of the right to the privacy of family life; and
(e) the parental duty to protect their children, usually including children born outside of marriage.
Lastly, given the attention given to the currently fraught question of the definition of marriage, it is interesting to note that only about a quarter of all constitutions aim to provide one.
The family and the state
Beyond these general observations, with careful sorting of the data we can begin to see a certain range of constitutional treatment of the family that help us identify patterns, or perhaps poles of coherence, in the underlying conceptions of the relationship between the family and the state. On one end of the spectrum we can find constitutions in which the interests of the state dominate over the family and where the family is subordinated to the state’s power and political or economic priorities. On the other end, some constitutions embody a model of family-state relations in which the family is a primary community with respect to which the state is subsidiary. In between these divergent views are a variety of more mixed positions. In some, the state does not necessarily subordinate the family to its own ends but does hold the family to (usually strong) ideals of conduct. In others, the family is essentially envisioned as a protectorate of the state, especially with regard to its material and economic wellbeing. And a number of constitutions declare the family to be the basis of state and society, to the point of guaranteeing forms of family participation in public life. (Of course, all of these are heuristic categories that are delimited for purposes of analytical description, but in actual practice the vast majority of states, even if they may tend more toward one or another of these models, contain elements of more than category).
Starting with those constitutions in which the state is explicitly dominant over family life, it is not surprising to find that it is most typical of authoritarian states. These states will not enumerate a right to privacy in the family, and often will use the state’s interest in regulating the family as grounds for limiting other rights, typically the rights to freedom of expression or the right to religion. But not all states that limit other freedoms by reference to the right to a family can necessarily be said to be authoritarian; some states see the family as simply more important than other rights, and so protect the family from expression or religious fanaticism through limitations of those rights when faced with the family. Among the more authoritarian states, though, a state may demand the use of family planning, omit any protection for the family or family members in criminal proceedings, and assert the power to legislate regarding the family without placing any constitutional limitations on that power. The most obvious example is the 1982 constitution of China: it requires the state to promote family planning (Art. 25), imposes a duty on husbands and wives to practice family planning (Art. 49), and accords various other powers to the state regarding family planning; it asserts authority over the families of citizens who are abroad (Arts. 50, 89); it denies that anyone has a special status because of their families; and although it grants a right to marry it does not recognize a right to have a family. The overall effect of this confluence of provisions communicates that the state exercises a particularly heavy control over how individuals live in the family, especially but not only with respect to procreation. A somewhat different example but reasonably within the same category of state dominance over the family can be found in Cuba, where the family is completely assimilated to the state both with respect to public obligations such as support for the elderly and the disabled (Arts. 88, 89), and with respect to the official state ideology: “Mothers and fathers have essential responsibilities and roles in the ... education and upbringing [of children] ... in correspondence with life within our socialist society”.
Related to this first group of constitutions but exhibiting less of a direct social control and instead holding the family to certain ideal standards of conduct, some constitutional systems basically affirm that certain kinds of family should be encouraged, at least, if not enforced. These states are most likely to hold the family to a high standard. They make demands on the family, punish family members who fail to live up to the standard of family life expected of members of the society, or at least suggest that families should be places where certain rights and responsibilities might be found. A good example of this model would be the constitution of Paraguay (1992), which combines certain state obligations toward the family – e.g., a state duty to protect the family as a whole and children specifically, and a right to a living wage – with a parental duty to educate children and various rights of vulnerable individuals to have the protection of a family. This combination shows that there is a distinct form of family life that the state would like to promote.
A third model directs the state to support families actively and robustly, and especially in its economic dimensions, but with less direct control over family life and obligations. These states may provide protections for family lands, family businesses, and/or guarantee family allowances. Such states will usually call for a right to living wages for the family and sometimes specify that the family should promote the political life of the youth. One good example of this would be the Mexican constitution of 1917, which guarantees a right to a living wage for the family, freedom of the family from individual debts, a family allowance, state healthcare for families, a right to a family home or property, and a state duty to educate children, without the parallel right or duty for parents. All of this exhibits a robust state involvement in supporting family life, but less as a form of social control and more as a preference for the family that manifests itself in economic support of the family through state programs. To a certain extent, therefore, these constitutions can be said to conceive of the family as a protectorate of the state.
Fourth, other states recognize substantially that the family is the fundamental building block of society, but go beyond the common pro forma declaration of that principle as it is found in most constitutions. Many of those states suggest that the family builds up the state, and some even go so far as to suggest that the family is truly more important than the state that it forms. As such, these states have a particular regard for the good of the family and enshrine the family in their constitutions as a matter of paramount importance in the society. Two that particularly stand out in this respect are Nicaragua (1987) and Portugal (1976). Both of these constitutions, unlike others that similarly claim that the state is founded on the family, specify both that the state creates the conditions necessary for the unity and stability of the family and also that the family should be a part of the political decision-making processes that pertain to the state. Thus, not only is the family a fundamental part of the community that is the foundation for the state, but these constitutions demand that the family remains a fundamental part of the state and the life of citizens in its continued life and development.
Lastly, there are a handful of constitutions that – beyond just seeing the family as important as one key building block for the society – seem to express a view that the state is a subsidiary community whose purpose is to support and protect the more primary communities, in particular the family, in which the human person flourishes. We can call this a classically subsidiarity-oriented vision.[5] While this category is usually not as explicit as the other four, it comes out by way of implication in several constitutions. An illuminating example would be the Chilean constitution of 1980 (very substantially revised in 2005), which in its very first article states that “Family is the fundamental core of society”, then immediately affirms that “The State recognizes and protects the intermediate groups through which society organizes and structures itself and guarantees them the necessary autonomy to fulfill with their own specific purposes”; and concludes with an affirmation that “The State is at the service of the human person and its goal is to promote the common good, for which it must contribute to create the social conditions which may allow each and every one of the members of the national community to achieve their greatest possible spiritual and material fulfillment, with full respect for the rights and guaranties established by this Constitution”. The clear and logical linkage of integral personal fulfillment with intermediate societies and specifically the family, as defining the basic institutional ends of the state, suggests implicitly but clearly that the family is both ontologically prior to, and morally primary with respect to, the state. Without invoking the principle of subsidiarity directly, this constitutional model can be considered to be a paradigmatic instantiation of that principle. Some subsidiarity-oriented constitutions go so far as to say explicitly that the purpose of the nation is to protect the family, in the recognition that the family is more important than the state. Kenya, for instance, points out that the state commitment is to protect “the well-being of the individual, the family, communities and the nation”. While many nations strive to make the family a place of safety, usually though ensuring rights within the family, this is just one example of states that emphasize the state’s duty to nurture the family. Notably, twenty-six states specify that the reason for this view of the primacy of the family over the state originates in religious beliefs and precepts, a point found most commonly among the constitutions of Islamic states.
In sum, it is reasonable to say that these varying and partially overlapping models of family-state relationships help to reveal not just that families are commonly regarded as “goods” from a constitutional perspective, but more importantly it shows important variations in what kind of good they are, relative to the state. The subsidiarity-oriented model presents the most robust example of the family as a human association whose good exists in virtue of its moral and ontological priority over the state. The good of the family is thus realized primarily through its freedom, and through the deference of the state to the family’s primacy. Similarly but less comprehensively, those constitutions that recognize the constitutive role of the family in social and political life imply a good that is intrinsic and generative. The more we tend toward models limited to protection, it seems that the family becomes seen as at best an instrumental good that needs to be sustained by the state for the well-being of its members, for broader social benefits, and for the creation of good citizens. The model of submission and control, arguably, sees the family as more of a threat to the authority of the state than a good.
Rights and duties, of and in the family
Turning now to the second axis of analysis of the constitutional texts – the recognition of the rights of the family as such and of individuals within the family – the distinctions to be made are more clear and essentially tend to be weighted toward one or the other of two paradigms: on the one hand, the family is understood as a (mostly temporary) conglomeration of individual interests, leading to a bundled collection of individual rights; or on the other hand the family is a locus of fundamental relationships between persons that are constitutive of human flourishing and that therefore entail reciprocal rights and responsibilities among the members of the family and that also serve as the basis for recognizing the rights of the family in public life more broadly. (Again, it is important to emphasize that nearly all constitutional systems have elements of both of these conceptions, not always in harmony and congruity with one another, but still we see tendencies for constitutions to lean more heavily toward one or another of these positions).
As far as the inner relations of the family are concerned, most constitutions represent the family primarily as a structure of individuals, each of whom has individual rights either to the family of in the context of the family. The most common are the personal right to marry and the individual right to have a family (including a right of children or of the elderly to a family). But others found across different constitutional systems include the right to safety within the family, the equal rights of spouses within the family, and the right of access to family planning. In a certain sense all of these rights have a relational dimension, because all of them presume the existence of some sort of interpersonal family relationship as either the logical premise or the aim of the right. Nevertheless, it is also important to see that these are all rights that recognize or protect an individualized interest; it is not the relationship or the relational interest that is the primary object of protection but the choice of the individual to enter into or exit or live freely and safely within the family. Or, it entails the intersecting rights of individual members of a family, such as the child’s right to protection of the equal rights of the spouses – each is an interest that pertains, ultimately, to an individual person. In this sense they are all consistent with the implicit but dominant theoretical justification of human rights in the contemporary world: they are understood to be individualized human interests of sufficient strength and importance to be given a special moral and legal recognition and status. One cannot ignore the very strong reinforcement of this mentality regarding rights that international human rights instruments and institutions tend to provide.[6] And just to be very clear, all of this is not per se a bad thing; the interests recognized are real and their protection is important to human flourishing and freedom. I do not think that any of us would want to remove from the constitutional canon the right of a child to a safe family environment, or the equal rights of men and women to enter marriage by their free consent, for example.
Nevertheless, it is the set of rights related to the family that go beyond that individualized interest and instrumental relationality that are the most interesting for us to identify and reflect upon. The question of fundamental rights within and of the family begins to take on an interestingly different cast in a handful of states that also specifically recognize the duties that individuals have in virtue of the existence of the family. In a few cases these duties can be characterized as arising out of a broader duty to the state; again the earlier example of the constitutional duty to practice family planning in China is an obvious example of a familial duty derived from the more general obligations of the family to the state. But in most examples, the recognition of family duties suggests that they arise from a recognition that families are fundamentally characterized by the intimate and constitutive relations among persons, and as such there are duties owed to each other in the relationship as well as reciprocally correlative rights. Essentially, both the rights and the duties protect the interests of the relationship itself, of the relational unity that exists in the context of a family.
Those duties rooted in a recognition of the family as a relational reality rather than in the interest of the state take more specific form in the constitutional texts in several different ways. The first is as very general and broad, largely unspecified, duties to the family. Twenty-seven states have some recognition of duties that individuals have to the family. There is seldom a clear explanation of what these duties mean, as many simply say that individuals have duties to the family, as to the society, the state, and other established institutions (see e.g., Angola, Cape Verde, and Comoros), or assert that people have rights or obligations and duties to the family, (see e.g., Eritrea, Ecuador, and Ukraine). Often, such constitutions will specify that rights and duties are to be shared equally between spouses, however no constitutions suggest that spouses have duties to one another explicitly (except insofar as this could be implied into the protection of pregnant women). Of these states, eighteen specify a duty to children, thirteen specify the parental duty to educate, and twelve specify both duties (Cape Verde, Cuba, Dominican Republic, Ecuador, Eritrea, Kyrgyzstan, Nicaragua, Panama, Paraguay, Peru, Portugal, and Sao Tome and Principe).
The parental duty to care for children is often paired with a child’s right to have a family. There are sixty-five constitutions that express a parental duty to any children in the family, the sixth most commonly included familial protection in the world’s constitutions. Of those, twenty-six constitutions also propose a child’s right to the family. Many of these also point out that children born outside of marriage have the same rights to the family or that parents have the same duties to their children. The constitutional recognition of a parent’s duty to educate their children is sometimes expressed as a right or privilege rather than as a duty, but most of the fifty-four constitutions that express a parental right to educate also suggest it is a duty. Twenty-two of these constitutions assert that this duty is shared by the state, or that the state maintains the power to assume the responsibility of education in the event of parental failure. This right appears in many of the states that have more rights protected overall, but also accounts for two out of the four provisions mentioning the family in the German constitution and two out of the three in Liechtenstein. This duty appears alongside the parental duty to care for children in thirty-two instances.
Examining the list of constitutions including such duties and the other rights enshrined in them, it seems likely that some of these states view the duties as simply a reflection of the functional role that parents have in society as vehicles for the rearing and formation of the next generation of productive citizens. Some constitutions, however, would seem to genuinely see the family as a relational good and worthy of protection in its own right. This seems especially to be the case where the constitutions in question not only specify duties and provide correlative rights, but also see the family as foundational to the society rather than merely a service to the state, and also enshrine other personal rights in the constitution. Exemplary constitutional texts in this regard include those of Nicaragua, Philippines, and Portugal.
Constitutional jurisprudence
Constitutional texts alone are only an initial chapter in the story of the constitutionalization of family law and the possible ways of giving effect to basic norms regarding the family. All legal texts are subject to interpretation and application, and the same provisions may receive very different expressions in the hands of judges and other practitioners. This is perhaps especially true in the interpretation and application of constitutional rights, because they are typically framed in terms of very broad, open-ended and abstract principles, and in most jurisdictions are regarded as having a dynamic, evolving quality to them. Moreover, as already noted no constitutional system is ever “pure” and consistent with regard to its organizing principles; with regard to the family, as with any other area of constitutional law, every system contains a synthesis of approaches, inconsistencies, paradoxes and even contradictions. In short, a more complete picture of the models, trends, and meaning of the constitutional treatment of the family around the world would also require extensive collection of and inquiry into the relevant judicial decisions. It would not be feasible in the scope of a short study and intervention such as this to try to be comprehensive of all of the constitutional systems of the world, as I could be with regard to the constitutional texts themselves. Instead, I will focus only on the main conclusions of the previous section – regard for the family as an ontologically and morally primary human good with respect to the state, and the existence and possibility of a relational approach to the rights and duties of and in the family. My aim is to show what these principles might look like in the actual constitutional practice of a few selected court decisions, from three different constitutional traditions in three different parts of the world, called upon to apply those provisions to concrete factual circumstances in addressing three very substantively different legal issues relating to the family. As we shall see, the relational approach is indeed capable of having resonance in constitutional jurisprudence as well, and the constitutional law of the family can serve as a way of bringing a more relational approach into rights and legal systems.
The most apparent example, worldwide insofar as I have been able to ascertain it, of a constitutional tribunal engaging in a relational approach to the family and to rights can be found in the jurisprudence of the Italian Constitutional Court. This should not be entirely surprising to any scholar of comparative constitutional law. As several colleagues and I have been arguing for the last seven years in a series of publications, the distinctiveness of the Italian Court is found in its comprehensively relational approach to all of its work – at the institutional level as well as the jurisprudential one.[7] Thus, with regard to the family, we can find several very suggestive decisions. In a 2013 judgment (n. 203) regarding the constitutionality of a law providing for leaves of absence from work to care for severely disabled persons, the Court expanded the range of those entitled to claim the benefit, noting that the underlying justification for the law is a preference for care in the family, and the importance of “relations of interpersonal and intergenerational solidarity of which the family is a primary manifestation”. Therefore, the Court concluded, “in order to ensure full protection for the weak it is necessary to provide not only healthcare services and rehabilitation, but also care and social inclusion and above all to ensure continuity within the constitutive relationships of the human personality” (emphasis added). At least two more recent decisions have built upon that relational approach in the same area of law. In 2018 (Judgment n. 158), also relating to the laws regarding worker’s leave for the care of a disabled child, the Court emphasized that the constitutional design favored the integration of both work and maternity “within the bed [alveo – i.e., as in a riverbed or seedbed] of family solidarity... in order to remove the obstacles that prevent the full development of the human person”. Likewise, a 2020 judgment (n. 18) reiterated that “ensuring full protection for weaker individuals also requires continuity within the relations that are constitutive of the human personality”, this time applying that principle to assess the constitutionality of a law on house arrest that allowed a mother to be separated from her disabled child.
In the Philippines (having one of the constitutional texts that is most comprehensively protective of the family with 20 provisions), the Supreme Court relied on a constitutional vision of the family as a locus of constitutive relationships to help judge the constitutionality of a far- reaching law aiming to govern reproductive health, in a 2014 case (Imbong v. Ochoa, G.R. No. 204819). It found the law unconstitutional insofar as it fragmented the family’s decision-making authority over essential reproductive matters (abortion, in this case) into that of individuals divided against each other instead of existing as a relational whole. The reproductive health (RH) law, it said:
in its not-so-hidden desire to control population growth, contains provisions which tend to wreck the family as a solid social institution. It bars the husband and/or the father from participating in the decision-making process regarding their common future progeny. It likewise deprives the parents of their authority over their minor daughter ... The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving absolute authority to the spouse who would undergo a procedure, and barring the other spouse from participating in the decision, [it] would drive a wedge between the husband and wife, possibly result in bitter animosity, and endanger the marriage and the family, all for the sake of reducing the population. This would be a marked departure from the policy of the State to protect marriage as an inviolable social institution. ... Decision-making involving a reproductive health procedure is a private matter which belongs to the couple, not just one of them.
It thus not only affirmed the essential relationality of the rights in the family, but also the rights of the family and the priority of the family over the instrumental policy goals of the state.
The final example comes from Chile, where the Constitutional Tribunal just last year (Judgment 11.315/11.317-21-CPT (2021)) was asked to rule on the constitutionality of certain provisions in a law regarding the protection of the rights of children, which aimed to limit substantially the constitutionally-protected right of parents to be the primary decisionmakers regarding the moral and religious education of their children. The Tribunal begins by setting out the basic constitutional principles by which it must judge; they are worth citing at some length. The first is that the Tribunal must protect against “excessive regulatory interference by the state in the liberty and autonomy of intermediate bodies, particularly the family – the fundamental nucleus of society”. Second, the Tribunal relies on “the value that the Constitution assigns to the intimate communitarian space of parents and children that is the family, in its relationship with the State, and the possibility for the latter to constrain its space of liberty and autonomy in the educational environment”. Third, the Tribunal affirmed that:
The educational process is one that if naturally found to be linked to the family. ... In it, the parents – in a preferential way – have to assume the gratuitous and primary responsibility to exercise their authority to lead their children along their path to adulthood, inspired by what is good for [the children] according to their best judgment. In this transition to adulthood, there is a concrete and daily educational work through which parents care for and teach their children according to their own convictions. It is a matter of a long and complex process of communication of a culture that goes beyond what is merely pedagogical or academic.
On the basis of these and other principles and legal arguments, the Tribunal found the law to exceed the constitutional authority of the state.
Other examples of constitutional courts taking a distinctly relational approach to the family are available from a wide variety of other jurisdictions – Colombia, France, Germany, Peru, Poland, Spain, and even the United States (notwithstanding its having no constitutional recognition of the family at all at the Federal level). For the purposes of this limited presentation, however, even the three examples offered above are sufficient to confirm that it is possible to imagine a relational approach to the family, to rights in and of the family, and to family-state relations, and also to confirm that it can be a very fruitful way of giving effect to the unique and vital place of the family in integral human development.
Conclusion: on relationality and human rights
Why do all these numbers and examples matter? In the reciprocity of rights and duties, and the recognition of rights as arising out of the interests and nature of the relationships itself, we can see an importantly different way of conceiving of fundamental or human rights themselves, of their source and their nature. As noted earlier, the standard conceptualization of contemporary juridical language regarding human rights is of rights as means of recognizing morally and protecting in positive law certain important individualized interests. This is so much the case that some legal theorists have concluded that the concept of a human right as it is employed by international courts today is, strictly speaking, not what technically would satisfy the juridical requirements for a legal right at all,[8] because they only contain two of the three necessary terms: the claimant, and the object of the right, but not the corresponding duty-bearer. In other words, the right is not defined as something so important that we agree to impose certain specific duties on others with respect to my claim. Rather, the right is the open-ended and unlimited claim that an individual has to the object of her strong interest. I and others see this problem as relating directly to the widespread problem of rights inflation and the incapacity to differentiate between those claims of rights that authentically serve to safeguard essential and universal aspects of human dignity and those claims of rights that do not.
To put it in a more concrete example, consider first the rights and duties related to the education of children. Many constitutional texts guarantee a generic right to education; in doing so they often do not specify who has the duty to educate. But as we have already seen, many constitutional texts also entrench both a right of parents to educate their children (and some constitutional texts and even international treaties add important additional language such as, “in accordance with their moral and religious beliefs”) and a duty of the parents to do so, as well as a right of the child to be educated within the family, and they may even provide for the subsidiary duty of the state to ensure that the primary community of the family has the means to carry out its educational obligations. Are these expressions only of the instrumental interest of the state in having educated citizens? Are they simply the extension of an individualized interest of the child to be educated? Either understanding would be reductive; the best explanation is that the existence and importance of the parent-child relationship, i.e. the family, is itself the source and justification of the morally-recognized and legally-positivized right and the reciprocal, correlative responsibilities of both the parents and the state.
One possible implication of this is that the conceptual foundations of rights and responsibilities of and within the family unit can serve as a corrective to the contemporary tendency to view the rights-bearer as purely an existentially lonely, autonomous monad, rather than a dependent being constituted in and by relationship and belonging, most especially relationships of love. We must note well that both the Philippines case and the Chile case discussed above were not just about the identification and assertion of a fundamental right against the interests of the state, but they were fundamentally about a conflict between two contrasting and conflicting visions of what human rights are – in each case one that pitted individual autonomous rights-bearers against each other in a model of rights as forms of separation and alienation, and one that saw rights as existing in and emerging from a necessarily interdependent, constitutive relationship among persons. Perhaps therefore it is not too much to dream that, if we were to take the rights of and in the family seriously as relational rights, it might bring about a more integral and sound idea of human rights as a whole, in line with the powerful exhortation of Pope Francis in Fratelli Tutti (para. 111):
The human person, with his or her inalienable rights, is by nature open to relationship. Implanted deep within us is the call to transcend ourselves through an encounter with others. For this reason, “care must be taken not to fall into certain errors which can arise from a misunderstanding of the concept of human rights and from its misuse. Today there is a tendency to claim ever broader individual – I am tempted to say individualistic – rights. Underlying this is a conception of the human person as detached from all social and anthropological contexts, as if the person were a ‘monad’ (monás), increasingly unconcerned with others... Unless the rights of each individual are harmoniously ordered to the greater good, those rights will end up being considered limitless and consequently will become a source of conflicts and violence”.
We cannot be too naïve about the immediate prospects for the realization of the Pope’s vision. Let us be honest that the relational view of rights is a small crack in what can otherwise seem like a thick ideological wall of the conventional view of human rights as merely individual interests. For every one judgment of a court that might be construed as refreshingly open to a relational understanding of rights, there are hundreds that are content to swim in the channel of more orthodox expressions of individualism and autonomy. And frankly, the direction being taken in new constitutions themselves, at least in some parts of the world, is not encouraging. For instance, while Chile’s current constitution and court served in this paper as one of the clearest examples of both a subsidiarity-oriented model of family-state relations and also a relational approach to the rights of the family, that country is currently undergoing a complete and very radical rewriting of its constitution. The new proposed text, which will be submitted for approval in a general referendum later this year, would eliminate essentially all of the current constitution’s references to and protections of the family. But even so, just as the family itself is the starting point for all forms of development of the person in time, perhaps even a few cases and examples of the family as a relational good in the constitutional space will be, in time, the starting point for social development – like mustard seeds placed in the cracks of that wall which will later grow and whose roots will generate a genuine transformation.
[1] The indispensable seminal text covering these upheavals is Mary Ann Glendon, The Transformation of Family Law (University of Chicago Press, 1989).
[2] E.g., Julieta Marotta & Agustin Parise, Public and Private Intermingled: Changes in the Family and Property Laws of Argentina, 13 J. CIV. L. Stud. 383 (2020); Patrick Parkinson, Constitutional Law and the Limits of Discretion in Family Property Law, 44 FED. L. REV. 49 (2016); Marieta Safta, The Concept of “Family” and Family Relationships according to the Romanian Constitution, 2021 CONF. INT’l DR. 66 (2021); Evripidis St. Stylianidis, The Value of Family in Greece: Constitutional Protection and Legislative Developments, 2021 CONF. INT’l DR. 57 (2021).
[3] One partial exception which does take up a comparative analysis, although it is largely limited to countries in the Latin American region, is the recent book La constitucionalización del derecho de familia: Perspectivas comparadas, Nicolás Espejo Yaksic and Ana María Ibarra Olguín, editors (Centro de Estudios Constitucionales SCJN, Mexico City, 2020), available at https://www.sitios.scjn.gob.mx/cec/biblioteca-virtual/la-constitucionalizacion-del-derecho- de-familia
[4] For the majority of the constitutional texts, in English, I have relied on the excellent Constitute database, at https://www .constituteproject.org/
[5] It is interesting, in fact, to recall that conception of subsidiarity in the early social encyclicals of Leo XIII and Pius XI in fact seem to regard the family as the fundamental unit to which subsidiarity pertains, not (as is commonly the current characterization), the individual.
[6] There are however, a very few notable exceptions, in particular the African Charter of Human and Peoples’ Rights, with its emphasis on community, family and duty seen in a much more communitarian rather than individualistic frame of reference.
[7] Vittoria Barsotti, Paolo G. Carozza, Marta Cartabia, and Andrea Simoncini, Italian Constitutional Justice in Global Context (Oxford University Press, 2016); Vittoria Barsotti, Paolo G. Carozza, Marta Cartabia, and Andrea Simoncini, eds., Dialogues on Italian Constitutional Justice: A Comparative Perspective (published jointly by Routledge Press and Giappichelli Editore, 2020).
[8] I am relying here on Hohfeld’s influential analysis of a claim-right as a three-term juridical relationship, subsequently taken up by John Finnis and others in the context of human rights law.