About the Right to Same-Sex Marriage. Some Considerations and Interpretations from the Constitutional Law Perspective

Abstract

Both Natural law (Jus naturale) and Roman law (Jus romanum), and the main international instruments - (the Universal Declaration of Human Rights, the European Convention on Human Rights and its Protocols, the International Covenant on Civil and Political Rights etc.), with the obvious exception of the revised European Social Charter (from 1998) and the Treaty of Nice, from the year 2000, in which the two notions, „man” and „woman” were arbitrarily replaced by the notion of „spouses”, - have stipulated „expressis verbis” that a family is based only on the marriage between a „man” and a „woman”, Our legal study - with references „ad fontes” (to the sources) - offers to the reader of our paper the opportunity to become acquainted not only with the rules of „Juris romanum antiquum”, but also with how international and national law have perceived and defined the institution of marriage. In fact, regarding the old Romanian Law (Jus valachicum), we have emphasized that – through “The Great Nomocanon”, printed în Târgovişte in the year 1652 – it has actually reaffirmed the definition left by the famous Roman solicitor (jurisconsultus), Modestin, of „legitimate marriage”, i.e. of „justa nuptiae”, which can only be concluded between a „man” and a „woman”, hence the obligation of any civilist or constitutionalist to return to „the sources” (ad fontes), i.e. to the provisions of Roman law, of the our ancient national Laws and of the main international instruments of our time.