23 January 2018 – Video and text of the paper by lawyer Fabrizio d'Agostini, Concilor of FOB, at the International Convention Law and Freedom of Belief in Europe, an arduous journey, held in Florence on 18-19 January 2018.


to Stefano Rodotà

When a terrorist act strikes a country of the European Union, everybody, from the victims, the witnesses, the Institutions, the citizens, to the interviewed, claim vigorously that the occurrence will not alter and will not change their way of living and their habits.

In my opinion this statement is a mistake. I consider that not being affected has been, and still is, a mistake.

I believe we should have changed a long time ago.

Before we promised to change and afterwards we committed to change. If we truly had changed just like we promised, probably now we would not have to confront ourselves with terrorism.

Concurrently, the statement holds within a misleading representation of reality, because the truth is that we have endured radical changes.

We did not change: we were changed under a historical process that we were not able to control. It has controlled us and still controls us. We have not been able to find the means necessary to stop being the result of the drift and return to being the cause. Or, at least, try to be the cause.

Therefore, the claim that a terrorist act will not change our way of living, is persisting in a double mistake. Because we did not change in the way we should have and because we have been changed in a way we would not have wanted.

It is for these reasons that, against any goodwill, these times seem uncertain. Chaotic and confused. Marked by all kinds of contradictions, by an apparently unstoppable crisis in the ethical, political and social values. Marked by 32 wars between populations, ethnic groups or religions and 12 civil wars.

Much has been said and much has been written about this era, describing it as a period of crisis, of transition and transformation. It is a widely common awareness, but what people can not work out is what kind of future to expect and if such future will be the result of a conscious fortuity or an unaware catastrophe.

The promise of change we did not keep was solemnly formulated by 48 nations of the entire world in the United Nations General Assembly (UNGA) on December 1948. The thirty articles of the Universal Declaration of Human Rights proposed a “different” world, a world where the humankind would have been able, in the entire world, to think freely and to pray freely and would have been free form fear and need.

Human rights, thus. As stated in the introduction of the very own declaration and as its fundamental motivation: “Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind”.

Europeans committed themselves to human rights on November 4 1950, with the “Convention for the Protection of Human Rights and Fundamental Freedoms”. We revoked the Universal Declaration of Human Rights of 1948 and transformed it into a convention, that is to say into a shared obligation. We even created a specific court to have those rights respected (Art.19 – European Court of Human Rights of Strasbourg).

The entire European community and the whole European union are based on the fact that the civil rights are a priority. In all the constitutions or fundamental laws of the countries that are part of the Union, civil rights are a solemn statement of principle. The acknowledgement of the civil rights has been, since the beginning, a non negotiable requirement in order to be part of the European Union, at that time not yet constituted.

Likewise the main act which serves as its basis founds itself in turn on the solemn declaration of civil rights, to the extent that Europe should have been, and would like to be, the land of freedom, the Europe of civil freedoms.

Through time, some have tried to create this Europe and something has been achieved (I think about the Charter of Fundamental Rights of 2000), but many, too many, have (and still do) taken position against it.

Looking today at the scenery that displays before us we have to bitterly acknowledge that not much has been achieved. We did not really succeed in creating, within the politics, the actions, the habits, the education, the culture and the morals the Europe of the civil rights. It does not only concern the citizens or the countries of the Union but it affects the Union itself as well, and in its most profound nature: constitutional and institutional.

This is the promise of improvement that we have not been able to fulfill.

Therefore, we still have to confront ourselves with the “Disregard and contempt for human rights” which newly “Have resulted in barbarous acts which have outraged the conscience of mankind”.

Instead, we have been changed from 1948 to today.

The directions and the drifts are countless. First of all the internet and as its consequence the phenomenon of globalization: a world which got small, multcultural and multiethnical. Strangers far away became strangers close by, diasporas and migrations of populations, different civilizations or civilizations on different phases of development try to live together or declare the impossibility to do so. The impossibility or the incomprehensibility of the divine together with the intolerance of the divine. And above all an obsessive communication which in the end produces the most formidable absence of meaning that the Western culture has had to deal with.

And more, societies opened up, families mostly without a clear purpose, kept standing by the good will of one of the spouses or by the economical impossibilities or broken apart…

And more, liberalism often without brakes, unnecessary spending, the disappearance of middle class. The middle class is in crisis. The society of consumerism, the multinational corporations…

And more, the third wave of feminism, gender and gender diversity and at the same time the creation of a term to hide the desperation and the tragedy of the killing of women: the “Femicide”…

The list could go on and on. What results is a cultural crisis, which has not, not yet at least, translated in the research and assumption of models that would allow at least to understand, if not manage, what is happening and why.

I believe that there is a reason behind it. I believe that the comprehension of it is possible and together with the comprehension, proposals of different solutions would be possible.

The history of the Western humanity has always had critical margins. Nevertheless its history, with all its limits of method, appears clear.

Therefore the transition from the Middle Age to the Modern History seems to be able to offer, in the quality, if not in the extent, a series of useful and important hermeneutical parameters.

In the time frame from the Middle Age to the Modern History significant changes took place as well. It is not just the Reformation and the Counter-Reformation, but the contrast between opposing and not reconcilable models of the divine itself.

The economy, the politics, the trade changed. The movable types were invented. The New World hit the Old World like a storm.

The New Indies had changed the food, the fabrics, the way of eating, of dressing, of living…

Painfully the model of the Paolina woman changed into fear for the widow, the unmarried and alone woman. The inquisition transformed the fear for those “different” women in a sign of witchcraft and the “femicides” were then often social.

Those were centuries of internal conflicts that covered Europe with blood far and wide. Insurrection movements and genocides.

Cruelty and ferocity…

Even at the time some would denounce the confusion, the caos and the impossibility to find interpretative models.

Forms of popular irrationalism crossed Central Europe and some would complain that the reality of what was happening had been lost and had nostalgia of the old times.

The juridical and political model of the national state was being built. It took a long time in order to turn it into a prevalent model, to make it everybody’s awareness, to translate it into a new language, from The Six Books of the Republic of Bodin (‘500) to The Spirit of the Laws of Montesqueu (‘700). This period of time concluded with the end of the French Revolution.

It was the surfacing of the middle class.

The nations, first among all France, already existed, but for centuries the Europeans continued trying to interpret the political and juridical reality on the basis of the political model of the empire and the papacy. They continued although since hundreds of years such model did not represent reality any more.

I believe that this incapability or impossibility to “comprehend” reality was the main cause of wars, of conflicts and of the cruelty, or at least of their magnitude.

I believe that today we are witnessing a similar situation, accelerated by factors like the speed of communication.

Only difference, the model of “Nation” has taken the place of the model of the “empire and papacy”.

As a matter of fact, it seems to me that the quality of the parameters is very similar if not the same. A parameter after the other, up to the “femicides” (in the second wave of feminism, in the years 1970/’80, human circles of girls and women were singing on the street “Shiver, shiver, the witches are back!...”).

What can be done? At least starting from Europe?

Well, we should change our current model used in the interpretation of reality. The model is indeed still the one of the national state and the relationships between nations. Everybody, from scholars, historians, anthropologists, philosophers, to jurists and last but not least politicians, are all convinced that the national state as a political and juridical model does not have any reason to keep on existing. They claim that with the significant cultural, social and economical transformation, which took place starting from the post-war period till today, the nations themselves should not exist anymore, and even more, they should definitely be dead.

But they are now in a long agony, and everybody is still stuck in the model of national state; it comes to light in everybody’s speech. It re-emerges with its harmful logic of the interests of the groups, as to say the logic of the “friend-enemy” that we come across in the electoral speeches in the nations (all the speeches are “friend-enemy”). As a consequence this logic closes the borders (to keep the enemies outside) and refuses community decisions (of their enemies), and the list could go on.

A certain amount of time will be needed for this situation to change. What has to be clear, actually crystal clear, is that a superior interest is possible. A superior interest which is not, or does not tend to be, the groups’ interest and will not fall into the friend-enemy logic.

But something can be done forthwith. We could do it without economical costs, the only expenses would be the cultural, moral, and ethical ones. Together we could begin to fulfill the promise made to the world by the union of the nations of the world in 1948, and keep faith to the obligation approved in 1950 for a Europe of civil rights. At the same time we could, and we should, become the cause of the changes that affected humanity, and ensure that the Europeans are the ones to create their own future.

This era has been also defined as the era of the communication. Internet has enabled communications which before were impossible, by reducing the distances and the ways of communicating.
This is true, but it is not the “right” communication.

It is a “wrong” communication. As a matter of fact the language is wrong. The ecumene (inhabited world) has become small, and the nations really small, but the language still remains bond to a political, juridical and social model already non-existent. This language clashes with its lexicon, its lemmas, its terms, its words and prevents the true comprehension with its supremacy.

The era of communication is the era of the inadeguate communication.

Such language has a terrible strength (a language kills more than a sword), but, in the end, it is just a language.

We can, without economical costs or financial hedges, maybe only with ethical expenses, become aware and start trying to change it.

First of all we have to recreate the distance, without which a union would not be possible. It is our duty, and our first focus should be on the the language, how we now use it and how we should learn to use it.

It is necessary to “distance”, conceptually and linguistically, the “close ones”, distance the “neighbours”, the “friends”. Those are terms that always indicate different concepts and different linguistic forms, but we have to distance them from us.

Our “close ones” have to become “different” (even though some are more similar to us than “others”). There are no French “close ones”, and even less French “Friends” (otherwise we would in fact remain, and actually we do, in the “friend-enemy” logic): they speak another language, they have another culture, another history, another literature, another philosophy. The have Corneille and Racine, Pascal and Des Cartes, they are different from us and different are the Germans: another language yet, another history, another culture, Fichte and Scelling, Kant and Hegel, Ghoete and Toman Man. Different, the Spanish of Gaudí or Lopes de Vega and the same goes for all the twenty-eight, now twenty-seven, countries of the European Union.

Union is not “friendship”. They are “different”, they are different and we are “different” in their eyes. It is only by acknowledging the difference that we can create, starting from the language, an union. Because an union can only be such with the “different”, and if we do not distance us from them and them from us and one from the other, we would be stuck with those who are “friends” and those who are “enemies”. Austria will threaten with closing the Brennero with its army and France at the Balzi Rossi will close Ventimiglia and never will there be union.

If we do not separate, there will always be the misconception that the “very precious” identity, everyone’s “sovereign power is at risk by the proximity, by the possibility of confusing with each other, of disappearing in the confusion with the “friend-enemy”, still and always “friend-enemy”…It seems odd that in the era of globalization, of internet, of multinational corporations, of the multiethnical society, of the thousand diasporas, it does not appear obvious that the only possibility of preserving the identity is exactly the opposite of what we are doing. We should move past the “friend-enemy” dialectic and recognize ourselves as “different”, found the union as an union not of friends but of “different ones”, because it is only in the union as an union of “different” that everybody’s identity survives.

We need to start calling ourselves “Europeans”, only then we could really understand what that “Europeans” means and suddenly discover the enormous power that we have.
Europe, not as a third power (as Altiero Spinelly would write on the Corriere), but the first power.

Then the European will conceive his/her history as “history of histories”, because he will possess as his/her own the history of all the populations that compose the union. Everybody will have in that history that became his/her own, both Corneille and Racine; both Hegel and Tomas Man; both Cervantes and Lope de Vega and will have Alighieri and Da Vinci… and those histories and different identities will survive and praise themselves.

That “Europeans” has high ethical costs, even sky-high costs, and those are the costs of the values it expresses.

Form the union’s point of view, the declaration of Bruxelles “We have to help Italy” on the migrants, would then be seen as a mistake, because the right sentence would be “We have to help the migrants”.

It would be pointless to say that “We expect Europe’s solidarity”, as if the migrant has disembarked in a country different from Europe.

And it is not possible to close the borders of France or Austria as if the migrants, disembarking in Italy, had not yet entered Europe.

It is the language but it is necessary.

In the closest possible future, how will, or should, or could, the right language of the Union be translated, from the point of view of the public law of the Union and in the comparative law of the member states?

I believe, as suggested by others as well, that Europe should make sure its voice is heard. In my opinion, sooner or later, the ministries of foreign affairs of the different states of the Union will gather in a single big office of the ministry of foreign affairs of the Union, and the relationships between the countries of the union will be taken care of by regional sections of the ministry of interior of the Union.

All the countries of the Union have in their constitutions or in their fundamental laws the solemn declaration of the civil rights. But they have different way of respecting them and different are their implementing rules. I believe that, sooner or later, it is fundamental to unify all the constitutions in a single text and have all the same implementing rules. At the same time the second subparagraph of Article 9(limitations of freedom) should be revoked (limitations of freedom) from the European Convention on Human Rights because of its ambiguity, or at least it should be rewritten and approved once more in a way that it can not constitute an explanation for many non-fulfillments.

Also every “margin of appreciation” sooner or later should be eliminated from the jurisprudence of Strasbourg. Even jurisprudence has to create the future.

In conclusion I believe that it is in particular Italy’s task. Its population, its intellectuals, its scholars its politicians, its associations, its Institutions, its European representatives, have to lead the initiative, starting from the language, of the creation of a powerful United Europe, united in the civil rights.

I believe that this duty, this task, this responsibility competes first of all to Italy: not really because of “Ventotene”, not really because of “Altiero Spinelli” and “Enrico Rossi”, not really because the “European Convention on Human Rights” has been signed in Roma, but because the Italian peninsula is the real door to Europe.

If we calculate the perimeter of Italy’s and its islands’ shores, Italy has for sure the most extensive border of the Union. Beyond this calculation, Italy is a sort of pier in the Mediterranean, a dock, an open door offered to Africa and Asia Minor. We are witnessing an extraordinary diaspora from Africa and from Asia Minor, an uninterrupted flow of “different”, of desperate that drown in front of our shores, arrive dead or disembark in endless lines of men, women, children… and these different all have a particular purpose… to flee from war, to flee from poverty, to flee from fear or to reunite with relatives, to seek protection, to look for work, to look for a future, a family… but in its totality this mass of human beings only has one petition.

They ask to Europe for their own civil rights and their own fundamental freedoms, and it is like a never-ending sound of a siren.

They ask it to Europe because in its convention, only Europe has committed to guaranteeing it to all human beings.

Because of this proximity with the “different”, the living and the dead, Italy has to be the spokesperson and propose to the union to be Europe, namely the Europe of the civil rights. A Europe that wittingly accepts the new season of the world and makes it its own and substitutes the model or the interpretative criterion of the nations and the groups and the logic of the “friend and the enemy” with the model “humanity” and the logic of the ‘different’.

Only when the value “Humanity” and the logic of the “Different” will have become the sociopolitical and sociojiuridical model that marks Europe, Europe will become the civil rights’ Europe. And in turn Europe will be able to become the engine of the new humanity, the one anticipated in the Universal Declaration of Human Rights.

Then peace will be more than an aspiration and a dream, then humanity actually could recognize itself in everyone’s right to think freely and express themselves freely; in the freedom of each human being to pray to God how he/she believes in every part of the world; in the freedom from need and in the freedom from fear and only then we could stand up from the land of freedom and say with pride “Europe”, “Europe”, “Europe”

J.D. Fabrizio d'Agostini