Resumen de Istanze interculturali ed assiologia delle formazioni sociali: la tutela del minore e della donna musulmana
The protection of family relationships is related to the implementation of human rights in the balance between cultural customs and founding values and the Italian-European system. Public order deduces from factuality the need to recognize the relevant status and positions established and recognized in other countries in a legitimate way. Juridical values, through culture and sociability, become cultural values, capable of seeing in polygamy the logical premise of other autonomous legal situations and deserving of protection.
The research involves purely two positions: that of the woman legally married in the country of origin, with a matrimonial institution not attributable to the institutions and unions legally provided for in the Italian legal system, and that of the child who wishes to reunite with the family or part of it or who needs a family support different from the biological one.
The Italian legal system allows and legitimizes an only and exclusively of monogamy relationship which, therefore, does not allow to recognize and legitimize a muslim polygyny, given the prohibition of bigamy and the opposition of such a union with articles 3 and 29 of the Constitution.
The principle of solidarity and, more actually, of family solidarity is a wall of the effectiveness of consolidated legal positions even if not recognized in the host system, provided that they are expressive of interests worthy of protection and with specific reference to the position of the “weak” person, without for this reason accepting and assimilating polygamy, which indeed receives from the system only its “social registration” for the purpose of attributing the effects recognized in the subjective legal situation. In this perspective, therefore, polygamy as well as kafalah and the institutes that can manifest themselves in the integration of foreigners (even if their complexity, all expressive of a function of social solidarity) will be in conformity with public order only to attribute to the person the most appropriate legal effect to the concrete situation, thus protecting the spatial and not only temporal continuity of the subjective legal situations constituted elsewhere but not, of course, to legitimize a post-modern polygamy.
