The case of the 'faithful prostitute' : judicial creativity and family values in a Southern European context

Abstract

In this paper I will address two issues of concern to law and society scholars. The first concerns the creativity of judges and other adjudicators in their Interpretation of legal rules. Are judicial decisions to rigidly apply legal rules or to interpret them more flexibly, purely arbitrary in character? Should they be considered as the unmediated outcome of the subjective political and moral beliefs of judges? A useful way of thinking about this issue is provided by Lynn Mather and Barbara Yngvesson (1981) in their analysis of the evolution of disputes cross-culturally. Adjudication, they argue, tends to involve the linguistic redefinition of disputes by authoritative third parties. This linguistic transformation can take the shape of 'narrowing', when the dispute is re-phrased in terms of established legal/ linguistic categories; or 'expansion' when the meanings of these established categories are themselves transformed and developed in line with the understandings of the disputing parties. One of the aims of this paper is therefore to investigate some of the situations in which judges engage In Jexpansionr or 'narrowing' in regard to legal rules and categories. This investigation will entail consideration of a related issue, which is the way in which litigants and other clients of the legal system construct their legal entitlement. How do individuals who wish to prove that they are entitled to the law's protection proceed? What stories do they tell to prove that their claims deserve to be taken seriously? How do rhetorical modes of persuasion mesh with 'purely' legal arguments to convince the adjudicator?