Some comparative reflections on the unsolved question of double surname

Abstract

Thinking of dystopian visions of the law arises the idea of legal transplants of rules which weren’t born in their actual context and have been placed successfully in different legal systems as consequence of circulation. In this flow legal rules lose its original features and acquire those derived from the new context in which they move. In this case the dystopian view allow us to discover what the legal framework would have been without the legal models circulation. This phenomenon is very frequent and more often concerns greater areas of law, for instance anti- discrimination law, given that today circulation concern general principles rather than specific, operative rules as in the past. In this perspective Italian Constitutional Court in a recent judgment (131/2022) recognized the non-compliance of art. 262 paragraph 1 of Italian Civil Code with the child’s right to identity and with the parents’ right to equality, protected by art.2 and art. 3 of Italian Constitution, as for the automatism of paternal surname derived from it. This decision will be the starting point to analyse the relevance of anti-discrimination law in Italy as effect of a presumed legal transplant as, for instance, Italian legal system until it didn’t recognize the possibility to use a double-barrelled surname, especially with reference to children born by parents joined in civil partnerships or same-sex marriages. The research will be conducted by comparative method, taking into account overall those elements (cryptotipes), hidden in the folds of legal systems, which explain the divergence between effects of the same rules in different places.