92367 - Marriage and Family between Religious Laws and National Laws

Learning outcomes

The mystery which characterizes the relationship between the man and the woman and procreation has originally placed marriage - for every civilization - in the sphere of sacredness: bringing it back to a divine intervention in human life. Consequently, religious laws have always played an essential role in the regulation of this field. In the West, the almost exclusive monopoly exercised by Canon law began to erode only with the advent of modern age. In fact, the States claimed to legislate autonomously on what was considered the basic unit of society: the family founded on marriage. The model they initially elaborated and that, at its first appearance, they still shaped on the provisions traced back to the creatural divine plan, has progressively differentiated from it, until it led to a radical disconnection which appears unbridgeable today. But yet, religious laws can’t be ignored, since they still incisively affect or claim to affect individual choices, rising issues which cannot be answered by simply relegating them to irrelevance. On the contrary, their knowledge, even more at the present time, in a world increasingly globalized and crossed by incessant migrations, has become fundamental and undelayable. It can’t be limited, as usual, to the laws of the three great monotheisms, but it has to include, instead, various religious experiences whose presence is widespread in our everyday life. They constitute an essential subject of study for the jurist. In fact, the challenge posed by the themes of marriage, family and procreation to the national and supranational laws (the term ‘national’ used in the denomination of the course is, albeit evocative of the meaning, obviously partial) is, precisely for its anthropological contents, absolutely crucial. To face it adequately both in the legislative phase and in the application one, a knowledge of religious-based laws - which is not superficial and extemporaneous, but scientific and critically set - represents an indispensable precondition in this subject.

The course aims to make students aware of this growing complexity on the one hand: and to make them capable, on the other hand, to manage it, as jurists, in the different areas of interest. The analytical explanation of the fundamental cognitive coordinates of the various religious legal systems, of their constituent elements, will be followed by the synthetic reconstruction of their interrelationship. The practical and casuistic approach adopted, will accompany the students methodologically: and will help them in identifying the contexts where the intersection of marriage and family rights is more incisive and presents greater coordination difficulties. Therefore the students - guided in their learning path also through the examination of real cases - will have to be made capable of applying the acquired knowledge. In this way they will demonstrate the ability to identify emerging problems, to prevent and resolve possible conflicts; and also to think about legal solutions adapted to different circumstances, of a personal, environmental and social nature.

Course contents

The contents of the course are the following, arranged by themes:

• The different and changeable anthropological contents behind the various ‘models’ of religious and secular marriage
• The theory of the purposes of marriage in the three Religions of the Book and the destructuring of the aim of marriage in secular systems
• Purposes and characteristics of marriage in the diversified landscape of non-Catholic Christian denominations and of the main Eastern religions
• Concept and juridical qualification of marriage in religious-based laws and in secular systems
• Impediments to marriage in religious laws and in secular systems: reasons and discipline, similarities and differences
• The central role of matrimonial consent and the different relevance of the vices of consent in religious laws and in secular systems: reasons and discipline, similarities and differences
• The different forms of the celebration of religious marriage and their relevance in national laws
• The regulation of spouses’ rights and duties determined by the valid matrimonial consent in the different religious and secular systems
• The regulation of filiation in religious laws and in secular laws
• Natural procreation and medically assisted procreation
• The different degrees of durability of religious marriages
• Civil marriage and divorce
• The relevance of religious jurisdictions in national laws
• Same-sex marriage between religious laws and secular laws
• Domestic partnerships and civil unions between religious laws and secular laws
• The dissolving of family ties and the limits to the self-determination of one’s own sexuality. The perspectives, often irreconcilable, of the religious visions of the world and of those widespread in post-secular societies

According to the comparative perspective that characterizes the whole organization of the course, in module 1 students will be taught introductory notions about the study of comparative religious law, the sources of religion-based legal systems and the juridical aspects of religious belonging and conversion, namely with regard to marriage and family in Judaism, Christianity and Islam, as well as in the main Eastern religions (Hinduism and Buddhism). Furthermore, we will show the gradual drifting apart of the regulations of marriage in State laws (with particular regard to Italy, but also considering the most significant experiences in foreign laws) and in religious laws. Then, we will introduce the substantive and procedural regulation regarding marriage in Canon law, highlighting the peculiarities of the law of the Catholic Church and its interrelations both with other religious laws and with State legal systems. In module 2, we will examine the marriage and family model in Islamic and in Jewish laws, as well as their influence on the juridical experience of Islamic countries and of the State of Israel. Furthermore, we will analyze the evolution of the Italian case law concerning current matters (such as polygamy, filiation, family relationships, and so on), which reveal the effect of the religious factor in a multicultural society and the (sometimes problematic) implications regarding the safeguard of constitutional rights and freedoms; in this case as well, the perspective will expand beyond the national borders.

For the integration of 1, 2 or 3 credits, students have to contact the teacher by e-mail to define a custom program.

 Erasmus students have to contact the teacher by e-mail to define a custom program.

Readings/Bibliography

Mandatory materials for the exam are the following:

- Strumenti e percorsi di diritto comparato delle religioni, Second edition, edited by S. Ferrari, il Mulino, Bologna, 2022, pp. 23-79 (Parte prima. Cenni storici e fonti del diritto) and pp. 191-241 (Parte quarta. Matrimoni interreligiosi).

For the general part, various teaching tools integrating the study of the textbook and the preparation for the final exam will be made available to students by accessing the digital platform “PandoraCampus”: there will be self-assessment tests, slides presenting the contents of each chapter, active contents with which one may interact (links, glossaries, flashcards, videos, chronologies, maps and charts), reading materials to deepen and to assess one’s own learning, current news pertaining the subjects of the course, tools for organizing the study.

- R. ALUFFI BECK PECCOZ, A. FERRARI, A. MORDECHAI RABELLO, Il matrimonio. Diritto ebraico, canonico e islamico. Un commento alle fonti, edited by S. Ferrari, G. Giappichelli Editore, Torino, 2006, pp. 3-93 (Il matrimonio nel diritto ebraico) and pp. 181-246 (Il matrimonio nel diritto islamico).

- G. DALLA TORRE, Lezioni di diritto canonico, Fifth edition, revised and updated by G. Boni and P. Cavana, G. Giappichelli Editore, Torino, 2022, pp. 185-235 (Capitolo sesto. Il matrimonio).

In the course of their lessons, the theachers will supply and recommend teaching aids and further learning material, following students' specific requests and interests. The material will be progressively uploaded to the teacher’s website and made available to students.

Teaching methods

The course will develop through lectures, seminars and meetings with experts.

Lectures will be given in the 2nd semester. As a consequence, students obtaining their attendance certificate in the current academic year are allowed to take their exam only from the month of May.

Students will be informed about dates and times of the seminars and the meetings with experts during the lectures or through notices, also on the Faculty web site.

The teachers use slides (or other supplementary material) that will be made available to students on the Virtuale (Virtual Learning Environment) platform.

The students who attend the course will be invited to take part actively in the analysis of the topics covered in the lessons: they will also be given the opportunity to prepare – with the assistance of the teacher – a paper about specific issues they’re particularly interested in, which will be evaluated during the final exam and will concur to the overall assessment.

A service of teaching tutorship is provided to students who need clarification about the content of the course and the exam. Students who want to ask for its operating modes have to contact the teachers by e-mail in order to receive communications.

Assessment methods

Only the student who has already taken the exams of Constitutional law and Private law is admitted to the oral exam.

The verification of learning consists in a final exam which will explore the acquisition of knowledge and skills requested through an oral examination sustained directly with the professor.

The exam will cover the issues described in the “Course contents” section. The examination entails the assignment of a grade.

In this way the student will be able to show not only the learned knowledge, but also the critical and methodological capacities gained. In the same time he will have to demonstrate to have some specific abilities. First of all, the possession of a mastery of expression and an appropriate technical language. The second one is the ability to move in safety within the system of the sources of this matter. The student moreover must have a clear perception of the information received and, finally, he must have properly understood the issues addressed in class and elucidated in the textbooks of reference. Learning such skills is easier during the course, the attendance of which is recommended in order to improve the learning process and therefore the student’s performance during the exam.

Namely, about the oral exam:

 As previously mentioned, the aim of the oral exam is to assess the actual achievement of the learning outcomes: therefore, both the knowledge of the relevant legal issues and the student’s capability to apply it in order to realize the required logical-deductive connections will be taken into account.

By way of a mere example, the assignment of the final grade will be based on the following criteria:

Sufficient knowledge of a very small number of the topics addressed during the course and analytical skills that only emerge through extensive support by the interviewer, with the use of a language that is not incorrect but is not completely accurate either → 18-19;

Fairly good knowledge of a limited number of the topics addressed during the course and analytical skills that are autonomous only on purely executive issues, with the use of a correct but not fully confident and exhaustive language → 20-24;

Good knowledge of a wide number of the topics addressed during the course and capability to develop autonomous analytical skills, with an efficient and confident use of a technically specific language → 25-29;

Extensive and substantially exhaustive knowledge of the whole program addressed during the course, capability to develop very good legal reasonings and to critically analyse and connect different topics, with a fully confident use of a technically specific language that shows a mature ability to develop original reflections → 30-30L.

The students who attend the course will also be given the opportunity to prepare – with the assistance of the teachers – a paper about specific issues they’re particularly interested in, which will be evaluated during the final exam and will concur to the overall assessment.

Students who need compensatory tools for reasons of disability or Specific Learning Disabilities (SLD) will communicate to the teacher their needs so as to be directed to the dedicated person and arrange on the adoption of the most appropriate measures: the same also applies with regard to the final exam.

Students have to book the final exam on the web application AlmaEsami.

Thesis

For the assignment of thesis the student must go to the reception of the teacher to discuss and decide the theme.

Teaching tools

During the lessons the teachers will indicate and provide texts and supplementary materials to complete the preparation.

Students will be informed about dates and times of the seminars and the meetings with experts during the lectures and through notices on the Faculty website.

The teachers use slides that will be made available to students on the Virtuale (Virtual Learning Environment) platform in order to help them understanding the issues and the institutions explained during the lesson.

Students who need compensatory tools for reasons of disability or Specific Learning Disabilities (SLD) will communicate to the teacher their needs so as to be directed to the dedicated person and arrange on the adoption of the most appropriate measures.

The collaborators of the Chair and the Professor will receive the students on the same day.

A service of teaching tutorship is provided to students who need clarification about the content of the course and the exam. Students who want to ask for its operating modes have to contact the teachers by e-mail in order to receive communications.

Office hours

See the website of Andrea Zanotti

See the website of Manuel Ganarin