The practical, applied research tool that this Guidebook proposes to use to facilitate the encounter between law and anthropology in courtrooms is the 'cultural test'.

What is A Cultural test?

The term cultural test refers to a set of questions and assessments that guide the judge in deciding whether to recognise a cultural practice and balance it against other rights. The instrument belongs to the broader category of balancing tests, which are used comparatively by many courts to set stable standards for deciding a dispute. Balancing tests originated in the common law tradition around 1910-20 and have since spread to other jurisdictions, to the extent that today even courts of European states use them (e.g. the reasonableness test used by constitutional courts). The expression 'cultural test', so specific and textual, was created by the Canadian Supreme Court, which forged the first cultural test in 1996.[1]  Consider that since 1963[2] there had already been 'religious tests' in the United States to verify the conditions for the recognition of religious practices.
Today, a cultural test refers to an instrument used to resolve disputes that arise from claims made by immigrants, foreigners or national minorities to consider profiles pertaining to their own culture. This test is characterised by the fact that it includes numerous anthropological issues in the questions being assessed. The purpose of the cultural test is to proceduralise the judge's argumentation process (in the opinion, or prior to it) so that all relevant issues, when a different culture is at stake, are considered in the process. This is a reasoning scheme that the judge is called upon to follow when resolving any multicultural dispute. The cultural test, with appropriate adaptations, can work across different branches of civil, criminal, administrative, juvenile, and international protection law. It can be used to assess a culturally motivated crime, a family law case, a compensation case, a child custody case or to respond to asylum seekers' claims.
The cultural test is not to be understood as a categorisation of culture - an approach that would contribute to a sterile exoticisation of cultures and which has been abandoned in anthropology since the interpretive turn of the 1970s[3] - but solely and exclusively as an orientation tool for the judge who is faced with cultural diversity, diversity that he or she must understand and 'translate' in order to be able to resolve the legal case in question.[4] Rather, what we refer to here as the judge's 'cultural test' is a set of questions useful for understanding whether to give recognition to a cultural practice and under what conditions.
The test constitutes a rationalizing schema, a pre-established procedure that the judge can follow in resolving a multicultural conflict; its purpose is to proceduralise the judge's argumentative process in the opinion, so that all issues relevant to cultural recognition are considered in the process.
 


[1] In R. v. Van Der Peet [1996], 2 S.C.R. 507.

[2] Sherbert v. Verner (1963), 374 U.S. 398.

[3] Geertz, C., 1973, Ibid.

[4] It is good to bear in mind, when reading the 'cultural test' proposed in this Guidebook, that culture is not something static, that it cannot be enclosed within a map or a list, but rather that it is an articulated system undergoing potential change, subject to numerous variables, and that it takes time to be understood and 'translated'.

To summarise, we could argue that a 'cultural test' is useful to provide judges with a procedure that allows them to

• become aware of the cultural component of a dispute;
• assess what weight to give to the cultural component by helping to balance cultural and other rights; and
• have a standardised and concise method to frame a multicultural conflict resolution, to evaluate a family law case, a compensation case, a child custody case or to respond to asylum seekers' requests. 

The cultural test can be used both in cases concerning the protection of culture, i.e. those cases in which a subject belonging to a cultural minority requests the recognition of a cultural right (e.g. wearing the veil, the kirpan; burying the dead according to one's traditions; cuddling one's children according to one's affective/emotional ways), and in cases of protection from culture, in which the legal system is asked, through the judge, to prevent the application of cultural practices that infringe other rights. The latter cases occur, in particular, in applications for asylum and international protection (e.g. voodoo, witch hunts, coercion to become a king or shaman), as well as in criminal law by victims of culturally motivated crimes (e.g. honour killings, female genital mutilation).
What is most desirable, through the use of this test, is for the judge to be prima facie aware of the motivations and cultural determinants that inform the parties' behaviour, and, in more complex cases, to be able to recognise the need for the advice of an anthropologist. This will allow the latter to assess the credibility of the events narrated by the parties in order to have as objective a verification as possible. For these assessments to take place, therefore, it is advisable to develop a certain anthropological sensitivity, and it is on this aspect that this Guidebook focuses by providing, in its special part, cultural cases illustrated in the light of the test.