Published in Consultor Jurídico (ConJur), the most influential legal portal in Brazil, the article by jurist Rui Badaró, general secretary of OAB-SP, contests the new law that restricts Italian citizenship by “cultural link” and analyzes the unprecedented decision of Judge Fabrizio Alessandria, of the Court of Turin, who sent the case to the Constitutional Court.
For Badaró, citizenship is a human right, not a concession by the State.
Read the article in full:
Legal absurdity over Italian citizenship goes to the Constitutional Court
When Birth Transcription Becomes a Hermeneutical Battlefield
Well then. Let’s start with the obvious, which, it seems, is not so obvious. When the Turin magistrate Fabrizio Alessandria, in his interlocutory decision (ordinanza) of June 25, 2025, states that “The birth act is valid according to the legge dello Estato estero in which it is stato redatto, and it is according to our new notice in the public order”, he is not making a mere subsumption. No! He is operating what the Hermeneutical Critique of Law calls applicatio — that hermeneutic moment in which the interpreter is faced with tradition and needs to decide whether to maintain it or break with it.
Let us see: the administrative refusal to transcribe a birth certificate under the pretext of “lack of cultural ties” is a symptom of what Lenio Streck has denounced with surgical precision — the judicial (here, administrative) solipsism that believes it can attribute meanings according to its will to power. As the jurist from Rio Grande do Sul rightly warns in his Hermeneutic Critique of Law, the problem is always the same: the interpreter who places himself as the absolute master of the meanings, ignoring the fact that the Law is not what we want it to be. It is the old problem of being-in-the-world misunderstood: the public administrator believes himself to be the master of the meanings, forgetting that he is cast in a legal tradition that precedes and constitutes him.
What do we have here? A question of principle — the very thing. Private International Law is not a set of technical rules for resolving conflicts of laws in space. It is, above all, a way of being-in-the-legal-world that recognizes normative otherness without colonizing it. When the Corte di Cassazione (Sez. I, no. 4466/2009) had already established this understanding, we have the effective history — the history of the effects of the normative text that cannot simply be ignored by an act of administrative will.
The invocation of the 1961 Hague Convention is therefore not a mere argument from authority. It is the recognition that we inhabit a shared legal world, where the claim to validity of legal acts transcends the borders of the nation-state — that Leviathan that, it seems, has not yet realized that the 21st century has arrived.
Italian Constitution Remains Strong: When Rights Become Favors
Herein lies the crux of the matter. When the judge mobilizes articles 3, 10 and 117 of the Italian Constitution, he is not engaging in ornamental constitutionalism — that plague that plagues Brazilian law and, apparently, also wants to contaminate Italian law. No! He is doing what every judge should do (and I believe does!): take the Constitution seriously.
Pay attention to what the judge says: “A retroactive normative condition that would condition the renewal of a status that has matured under the validity of another discipline is not legally tolerable.” This is constitutional hermeneutics in its purest form! It is the understanding that legal time is not linear, but kairological — there are moments of rupture that cannot be retroactively erased to erase what has already been established in the world of life.
Law 74/2025, by attempting to impose cultural and territorial criteria for the recognition of citizenship jure sanguinis, commits the cardinal sin of constitutionalism: it transforms what is a right into a concession, what is recognition into a benefit. It is the old story of the State that considers itself the owner of fundamental rights, distributing them according to its political convenience.
But — and here is the crux of the matter — the Constitution is not a text at the disposal of the ordinary legislator. It is a framework order that establishes the limits of what is possible in law. When Article 3 speaks of equality, it is not authorizing the legislator to create castes of citizens — some more Italian than others, as if we were in some Orwellian dystopia.
The principle of legitimate trust (legitimate affidavit) invoked by the judge is, in essence, the recognition that the Law operates with promises — and legal promises cannot be broken at the whim of political winds. This is the Democratic State of Law. The rest is authoritarianism disguised as legality.
Citizenship is a human right, not a state concession
Pay attention to this point, because here things get philosophically dense. When the judge cites Article 15 of the Universal Declaration of Human Rights — “every individual has the right to citizenship” and “no one can be arbitrarily deprived of citizenship” — he is not engaging in humanitarian rhetoric. He is acknowledging what legal phenomenology has long recognized: citizenship is a way of being, not of having.
See what the judge says: “To impose ex post conditions for the renewal of a status that differs from a blood ancestry means to deprive a person of his citizenship in an arbitrary manner.” This is Levinas applied to the Law! It is the recognition that the Other (the descendant of an Italian) has a face that challenges me and to which I cannot deny recognition without committing ethical violence.
The Warsame v. Canada case (2009) cited above is not a mere precedent. It is confirmation that there is a global legal ethos that transcends the petty bureaucratic pettiness of states. When the UN Human Rights Committee establishes that arbitrary requirements violate Article 24 of the International Covenant, it is saying: there are limits to state discretion. And these limits are ontological, not merely normative.
Citizenship as a fundamental human right is therefore not a generous concession from the State. It is recognition of something that is already there, in the world of life. It is being-there-a-citizen that does not depend on administrative goodwill to exist.
International treaties versus domestic legislation: the inevitable confrontation
And we come to the crux of the decision. Article 117 of the Italian Constitution is not a mere rule of jurisdiction. It is what I call a “hermeneutical window” — a device that allows the Constitution to breathe the air of the world, without suffocating in legal provincialism.
When the judge states that “Non può una legge ordinaria — come la L. 74/2025 — disattendere convenzioni internazionali e norme pattizie che tutelano il diritto alla cittadinanza come element fondamentale della persona”, he is operating a true fusion of horizons between domestic and international law.
The 1997 European Convention on Nationality is not, here, a mere argumentative ornament. It is part of the pre-understanding that constitutes the interpreter at the time of the decision. The judge cannot pretend that it does not exist, as if he could choose his sources at will.
This is what I call “cosmopolitan constitutionalism” — not in the naive sense of a world government, but in the hermeneutical sense of recognizing that we inhabit a shared legal world, where normative boundaries are porous and fundamental rights circulate like hard currency.
Paradox of blood without culture: Italian biopolitics
The Turin decision reveals something fundamental: a judge who applied the law in its constitutional integrity. Is it that simple? No, it is that complex. Because applying the law, in times of administrative exception disguised as democratic normality, is an act of resistance.
The ordinanza is not about birth records. It is about what it means to belong. It is about the difference between being recognized and being tolerated. It is about the abysmal distance between citizenship as a right and citizenship as a favor.
When the Italian State attempts to transform jus sanguinis into jus culturae through an ordinary law, it is operating in a state of exception: the suspension of the legal order in the name of the legal order. It is the paradox of the sovereign who places himself above the law in order to supposedly protect the law.
But the Constitution resists. Treaties resist. And the Judiciary, when exercising its constitutional function, also resists. The Turin decision demonstrates that the Law is not what power wants it to be, but what the integrity of the legal system demands it to be.
In the end, the lesson is as clear as mountain water: there is no people without belonging, there is no belonging without recognition, and there is no recognition without Law. And when Law meets blood – not the blood of exclusion, but the blood of affiliation – what we have is citizenship. The rest is biopolitics. And biopolitics, as we have known since Foucault, is always about who can live and who must (symbolically) die.
The Turin decision said: here, the Law still breathes. So be it.
Rui Badaro He holds a PhD in International Law from the Universidad Catolica de Santa Fe, is president of the Board of the Brazilian Society of International Law, and is secretary general of the Foreign Trade Commission of the OAB-SP.
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