A Name of One's Own: Gender and Symbolic Legal Personhood in the European Court of Human Rights

Abstract

Legal regulation of surnames provides a fascinating venue for examining how women negotiate their interests of autonomy and of stable personhood vis a vis a patriarchal naming structure. This is a study of 25 years of adjudication of surnames and personal status at the European Court of Human Rights. It explores the intricate ways in which legal norms governing surnames (and their judicial interpretation) sustain, shape, and reify social institutions such as gender, family, and citizenship.

As a pan European court, the adjudication of the ECHR operates within the framework of human rights. The universal characteristics of human rights principles allow for an analysis that goes beyond the jurisdiction-specific doctrines of the different countries in Europe, relying on a more general protection of basic rights such as equality and privacy.

All of the cases studied here originated in civil law countries. Unlike the common law, the civil law has a highly regulated approach to name-giving and name-changing, a fact that results in litigation in cases that would not reach courts in contemporary common law countries. The rulings in such cases provide a unique opportunity to learn about judicial assumptions regarding gender roles and their symbolic representation through names.

This study is part of a larger project that explores the legal treatment of “external” personal markers such as clothes, hairstyle, names, and accent. Adding an important comparative dimension to the overarching project, this article further illustrates the difficulty of modern legal logic to be humble about its ability to classify and categories legal subjects in fixed rubrics of identity. Employing theoretical tools from feminist jurisprudence, semiotics, and textual analysis, this article lays out an alternative legal approach, which would perceive the subjects of law as multidimensional and complex persons, engaged in an ongoing project of finding ways of expressing themselves meaningfully.