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Paper short abstract:

How and to what extent can societal ends, rules of punishment, individual rights and multicultural approaches be assembled in the light of the specificities of the debate on the relation between cultural diversity and judicial practice in criminal courts?

Paper long abstract:

Debates on the relations between culture and law, between cultural diversity and legal practice, be it legislative practice or judicial practice, can intersect different fields of knowledge, different theoretical suasions, and different analytical levels. Motivated by a Portuguese interdisciplinary project on the way judicial courts balance equality and respect for cultural difference, I propose to discuss what are the main challenges and potential misunderstandings arising from that intersection, as well as the practical and ethical-epistemological aspects involved. I will focus specifically on debates on cultural difference and criminal law in judicial courts. The aim is to sort out the specificity of different levels of discussion in European contexts, in order to understand how and to what extent can societal ends, rules of punishment, individual rights and multicultural approaches be assembled.

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Paper short abstract:

This paper tries to summarize the "state of the art" of cultural expertise in Italian courts today, it identifies the possible reasons behind its fragility and some consequences. Data derive from a research I carried out in 2017 regarding the collaboration between Italian courts and anthropologists.

Paper long abstract:

This paper is skeptical about a recent proposal (made by part of Italian legal world) to develop a "cultural test" for Italian courts to ensure a more effective approach to multiculturalism. Italian law allows for experts to participate in trials when the matter in dispute involves issues that cannot be resolved based on general notions or experience: so why should judges take the place of anthropologists? By presenting data derived from a collection of Italian judicial proceedings involving cultural experts as well as from my personal experience as expert witness, this paper outlines the wide range of positions on cultural expertise in Italian courts. What emerges is a vulnerable relationship which leaves considerable room for experimentation while at the same time being heavily affected by a narrow perspective on the role of culture in law. Such awareness, however, may represent the basis for remedying shortcomings and for establishing a successful systematic collaboration between legal actors and anthropologists, instead of for renouncing it.

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Paper short abstract:

How is the cultural variable used in juvenile courts in Italy? By comparing two contexts (Turin, Reggio Calabria), an attempt will be made to illustrate how cultural variable comes into play to protect different subjects (children of migrants, youngsters of 'ndrangheta).

Paper long abstract:

The youngster's best interest represents the founding principle of juvenile justice at international level. Parental responsibility becomes a Government monopoly when, through the judgment of parents' abilities, a judge has the power to interrupt the biological relationship.

But what is the Italian situation of the relation between juvenile law and culture?

Thanks to the investigation that has been carried out to date, attempts will be made to compare two distant contexts: Turin, in the North of the peninsula, and Reggio Calabria, in the South. Subjects exposed to child protection interventions, in which the cultural variable is often brought into play, have different stories and origins. On the one hand, the question of the culture of immigrant families arriving in Turin, on the other hand, the deviant, marginal, but powerful culture of 'ndrangheta.

In the case of migrant families, the Court judges' "other" educational models, often making a stereotyped use of the cultural variable. Superficial evaluations of facts - which are incoherent when related to reality - are the result of scarce understanding of problems of immigrant families and of a limited investment in supporting parental fragility.

Youngsters of 'ndrangheta are removed from their region of origin because their psycho-physical development appears to be compromised. The judicial measure mentions a "familiar, territorial and social context which is seriously compromised", a "system of values characterized in criminal sense" and a real "cultural difference".

The cultural variable therefore takes on a different value and meaning according to the context in which it's applied.

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Paper short abstract:

The paper explores legal pluralism and local court cultures in asylum adjudication by drawing on more than 500 legal ethnographies at asylum appeal courts as well as interviews in the UK, France, Germany, Austria, Belgium, Italy and Greece.

Paper long abstract:

ASYFAIR is a multi-disciplinary and multi-methodology study that has conducted more than 500 legal ethnographies and interviews at asylum courts in EU countries, including the UK, France, Germany, Austria, Belgium, Italy and Greece, to explore the varying processes of asylum adjudication across Europe. Rather than focusing on substantive consistency -e.g. outcomes of asylum appeals - ASYFAIR's paper unpacks the concept of legal procedure from an anthropological perspective. In so doing it goes beyond legal doctrine to explore the legal pluralism and local court cultures in asylum court proceedings, which can be problematic for asylum appellants (Gill and Good, 2018).

Drawing on our legal ethnographies, the paper explores both tangible and obvious differences, as well as intangible and uncodified differences (e.g. 'atmosphere') of asylum court appeals, juxtaposing the local (individual EU member states) with the regional (the EU), and asks to what extent it is possible to talk about consistent asylum appeal procedures in the context of the Common European Asylum System (CEAS). In 2013 CEAS was launched to standardise the procedures of asylum determination, including the right to appeal an asylum decision at court. The procedures directive aims for standardisation in the way asylum claims are dealt with in Europe. Although consistency and fairness are routinely utilised by legal scholars to evaluate legal systems, our paper questions the feasibility (and desirability) of this objective by exposing the depth and variety of inconsistencies in everyday adjudication in practice.

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Paper short abstract:

In the context of judicial strategies that neutralize foreign legal cultures in asylum and international civil trials, the paper reflects in-the-field experiments on epistemic negotiating between the judiciary and legal anthropology about the definitions of law, culture and its variants.

Paper long abstract:

Drawing on ethnographic research of judicial cases with the presence of the alterity of law/culture in cultural evidence about the state of the law in migrants' country of origin (asylum trials) and the application of foreign law (international civil trials) in the Czech Republic, the paper first outlines how encounters with the "foreign" (the legal cultures of Afghanistan and Yemen in the trials) are handled by multiple, mostly textual judicial strategies which employ the divide between law and culture in order to neutralize what may be called the "alterity" of law. I suggest that far from being analytical tools concepts such as "tradition", "culture", or "custom" are used to essentialize, disintegrate and reduce unsettling foreign legalities. In this context, I reflect on how Leopold Pospíšil´s ethnological concept of law can be used as a vehicle to discuss whether anthropologists can realistically contribute to the judicial practice without a kind of anthropologization of legal authorities' distinctive manner of imagining the real and destabilizing taken-for-granted definitions of law, culture, and its variants as well as whether the mutual divergence can be bridged by handing over "methodographic" insights.

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Paper short abstract:

Science's contribution to the discovery of truth in judicial procedures has become increasingly relevant. However, this presents some challenges to legal practitioners. The authors will seek to expose the difficulties of dialogue between law and anthropology, within judicial procedures.

Paper long abstract:

Science's contribution to the discovery of truth in judicial procedures has become increasingly relevant. However, this contribution presents some challenges to legal practitioners. This is the case of social sciences. In this paper, the authors will seek to expose the difficulties of dialogue between law and anthropology, within judicial procedures.

In Brazil, the constitutional acknowledgement of the indigenous social organization and the essentiality of the land for the physical and cultural survival of indigenous people, has turned anthropological studies into central evidentiary elements in the context of administrative and judicial procedures, especially those involving demarcations of indigenous lands. Thus, rigor in the control of methodological and ethical aspects of these studies is vital. Moreover, courts must be able to evaluate the expert evidence in order to establish the truth about legally relevant facts.

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Paper short abstract:

Based on the analysis of decisions issued by state courts, the paper analyzes the treatment given by the criminal justice system to indigenous people in Brazil, paying special attention to the recognition of their ethnic identities and the application of their specific rights.

Paper long abstract:

The present paper discusses the treatment given by the Brazilian penal system to indigenous people in criminal cases, having as index of analysis the recognition of the ethnic identity of such people and the proper application of the legal provisions ensured to them. Specifically, particular attention will be paid to the discursive regime mobilized by the judiciary to deny the intervention of experts (anthropologists, interpreters) and the application of measures other than incarceration (as directed by the ILO Convention 169). The proposed analysis is based on two axes: (i) one "macro", intended to investigate the historical-political construction of the relationship between the Brazilian(s) State(s) and indigenous peoples, and (ii) one "micro", with the purpose of extracting from judicial decisions the rationality that guides judges in concrete cases. In this sense, the analysis undertaken will be supported by recent rulings handed down by State Courts of the various regions of the country, in the context of constitutional jurisdiction, in order to demonstrate that the practice here addressed is systemic, conjunctural. We can argue, at this point, that Courts deny indigenous rights to indigenous people by disregarding their ethnic specificity, based on a random index of Indianity that rests on an assimilationist ideal incompatible with the prevailing international and constitutional order, and ignores the social and cultural complexity of indigenous lives in nowadays Brazil. A colonial mentality actualized on perverse bureaucratic procedures that allows the statistical concealment, the social invisibility and the legal death of culturally differentiated subjects of rights.

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Paper short abstract:

Portugal's case-law is promising as a case-study on multicultural jurisprudence, despite absent from international comparative studies on the matter. InclusiveCourts project seeks to bridge this gap by looking into the practice of Portuguese courts in cases involving cultural arguments.

Paper long abstract:

When faced with cases falling under the heading of 'multicultural jurisprudence', domestic courts are often required to use concepts such as race, culture, ethnicity and religion, and to balance the principle of equality with cultural difference. Portugal's case-law is particularly promising as a case-study on multicultural jurisprudence, given its relatively recent status as an immigration country (and as a multicultural society) and the widespread conviction that it is an immigrant friendly country that favors integration and intercultural dialogue. Yet, Portugal remains absent from international comparative studies on the matter. InclusiveCourts research project (JUSGOV & CRIA) seeks to bridge this gap by looking into the practice of Portuguese courts in cases involving minorities and/or cultural arguments.

A mixed methods research project has been designed, including a detailed mapping and review of Portuguese jurisprudence (1976-2021), the running of five focus groups with the main legal stakeholders (which included judges, prosecutors, lawyers, and NGO representatives); and, specifically regarding the familiarity of judges with cultural arguments used in court, we applied a questionnaire and conducted in-depth interviews with judges and prosecutors.

Data analysis shed light on openness to cultural arguments and evidence and on the weight that judicial actors accord both in their rulings.

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Paper short abstract:

By using an interdisciplinary perspective, this paper draws upon the ECtHR's jurisprudence to discuss the (potential) role of anthropologists as expert witnesses in developing a European multicultural jurisprudence on indigenous land rights.

Paper long abstract:

Indigenous issues have been generating original dilemmas in socio-legal scholarship. They relate to the inherent capacity of human rights to offer a meaningful response to the claims of multiethnic groups such as minorities. Cultural relativism (GEERTZ, 1983) and legal pluralism (BENDA-BECKMANN, 2002) have been keywords in this debate. From a Global South perspective (SOUSA SANTOS, 2013), the concepts of jurisversity and inter-legality (SILVEIRA, 2014) have been regarded as essential legal tools in plurinational societies.

The plight of indigenous peoples has recently acquired burning topicality. Indigenous peoples represent 5% of the global population and account for about 15% of the extreme poor (WORLD BANK, 2019). The main reason behind their precarious situation lies in the structural discrimination against culturally diverse groups in the society. In Europe, the situation of the Sami People is an illustrative case in point. The Sami people have a special relationship to their lands that are responsible for their very survival and collective cultural identity. Conversely, the Sami people have a fragile land tenure over their territory.

By using an interdisciplinary perspective, this study addresses the potential role of anthropologists in European cases concerning Sami land rights. Notably, despite the complaints filed by the Sami, the European jurisprudence does not regard land rights as property rights (KOIVUROVA, 2011). The ECtHR's formalistic approach undermines cultural diversity. To tackle this, this paper argues for an interdisciplinary dialogue between anthropologists and legal practitioners in judicial settings. The consideration of anthropologists as expert witnesses is urgently needed.