Illustration of a 'cultural test' and its functions

The 'cultural test' proposed in this Guidebook as a tool for analysing certain cultural cases that frequently come to the judge's attention is explained in detail below. The test could also be used by judges as an analytical framework for examining other cultural cases not selected for this Guidebook.
The test consists of twelve questions and is the result of a synthesis of cultural and religious tests currently used in North America as well as a survey of the main arguments developed by Italian and European judges when resolving multicultural conflicts. The test could be used for both cultural and religious practices.

The proposed 'cultural test' is designed with a triadic structure.

1. Can the category 'culture' (or religion) be used?

This question is preliminary to the conduct of the test and is intended to expose the erroneous or opportunistic use of the cultural argument, which is sometimes made by parties in litigation or asylum claims by alleging false practices or practices not recognised as such by the group.

2. Description of the cultural (or religious) practice and group.

Once it has been ascertained that we are dealing with culturally-motivated behaviour, this second step of the test aims to provide more information by detailing the contents of the cultural practice, its historical origin, mode of manifestation, and meaning. The description of the cultural practice injects anthropological knowledge into the trial; it fulfills the obligation of rationale by explaining exactly what is at issue and enabling the community of interpreters who will read the judgment to understand exactly the contents of the conduct that is being justified and/or condemned.

3. Embedding the individual practice in the broader cultural system.

Starting from the idea that culture is an 'interconnected system' (a complex whole), it is important to perceive individual practices not as isolated, but in interaction with the entire 'web of meanings' (web of significances) in order to fully appreciate their characteristics and scope. Once the individual cultural or religious practice has been identified, the judge is, therefore, invited to interpret it systematically within the 'cultural order' in order to ascertain its connections and further illuminate its meaning, as well as to provide the audience with a greater understanding of it in the light of the entire cultural horizon of the minority (e.g. the Islamic veil should not be treated as something isolated from the role of the Arab woman, the meaning of modesty, the view of the body and sense of modesty in that group). This ascertainment also serves to prevent the majority from reading the practice in a distorted way as they contextualise it in their own semiotic system where it might have a completely different meaning (e.g. the Islamic veil is read in the western "web of meanings" as female oppression while in the Islamic world it has aesthetic functions, of a fashionable garment, or practical, of protection from wind and sand; the bride price is seen in Italy as enslavement and buying and selling of a person, while if placed in the broader context of Roma marriage it shows that it is a gift given to the bride's father that expresses the recognition of the woman's value).

4. Is the practice essential (to the survival of the group), compulsory or optional?

The question is used to investigate the level of importance of the cultural practice for the claimant in order to assess, in the subsequent balancing act, what kind of sacrifice is being demanded of the minority. We move from cultural practices without which the group would not exist as such (e.g. Jewish circumcision is considered essential to the survival of the group); to practices that are obligatory (e.g. wearing the kirpan/ritual knife for Sikhs; wearing the veil for Muslim women); to cultural practices that are merely optional (e.g. kissing one's child on the genitals) and that are more habits than structured practices. The more cogent a practice is for the individual, the greater should be the effort towards its recognition by the legal system, if, of course, other conditions of the test are met.

5. Is the practice shared by the group
or is it contested?

Cultures are dynamic and constantly changing systems; if the intergenerational transmission of a practice is being interrupted because some members of the group assign less value to it, this may or may not play a role in the assessment of the case (e.g. facial scarification has been abandoned in certain groups; female genital mutilation itself is contested in many African and Asian groups), because for a certain minority group, within the minority, the practice may continue to be shared. Through this part of the test it is possible to delve into the dynamics of cultural groups and the differentiations that often characterise them. On the one hand, this question avoids the endorsement of controversial practices, ensuring a voice for those subgroups that contest the cultural practice, while on the other hand, it highlights the reasons that may lead to the continuation of the same in other internal groups: in both cases, an attention to the "minorities within minorities" is solicited.

1. Objective part

1. The first five questions make up the objective part of the test, which seeks to ascertain whether the behaviour being judged is indeed a cultural practice, whether it is described in detail and whether all anthropological descriptions of the behaviour are sufficient to ensure full understanding.

Responses to the objective part of the test (the first five questions of an anthropological nature) have been provided in some cases in this Guidebook: in the special part, examples of already completed tests are examined.
When this Guidebook does not describe the cultural practice, the questions may be answered by the cultural expert (e.g. an anthropologist or other scholar who has studied the group and the behaviour under scrutiny) or, if one cannot find one, by hearing from qualified 'lay' experts (e.g. embassies, consulates, mayors, other official authorities representing the minority) or quisque de populo belonging to the cultural group who can give an opinion on the cultural practice under scrutiny.
For the best-known cultural practices (e.g. male circumcision), autonomous searches by the judge are also conceivable. The responses to the subjective and relational parts of the test are part of the fact-finding and balancing activity of the judge and helps to take into account all the interests at stake.

6. How would the average person from that culture (or religion) behave?

The question serves to benchmark the party's behaviour to that of the model agent (reasonable person in North American jurisprudence) and to exclude behaviour that does not find the support of the group as disproportionate (e.g. the Mexican who kills at the insult 'chinga tu madre' cannot invoke the mitigating factor of provocation as no average Mexican would react to such an insult with murder, but at most would beat up the antagonist ). This question is not a statistical calculation on the whole group; one must, in fact, take into account the presence of subgroups wherein the practice might persist while dying out in the larger group.

7. Is the subject sincere?

This question serves to relate the objective data gathered from the previous questions to the concrete subject in dispute, in order to assess the legitimacy of his claims. It is a factual ascertainment that can take place by verifying whether in the subject's life there is consistency between the claimed practice and overall behaviour (e.g. a subject asks for a day off on Fridays to go to mosque, but never goes to pray; a woman asks to be allowed to wear the veil in her work uniform, but never wears it in the rest of her day). If the subject is not sincere in her claim, even if the cultural practice exists, it cannot be recognised in that concrete case because the request is specious.

2. Subjective part

Questions six and seven represent the subjective part of the test in which the concrete embodiment of culture in the agent and the agent's level of adherence to its culture are ascertained.

8. The search for the cultural equivalent. The translation of the minority practice into a corresponding (Italian) majority practice.

It is crucial, in any multicultural dispute, to 'translate' the practice into an equivalent of the majority culture by indicating what that behaviour/symbol/ritual/habit would correspond to in the host country. The purpose of such ascertainment is to make the minority's behaviour more intelligible, avoiding attributing meanings to it that are distorted by the cultural lenses worn by the majority. In this way, the terms of the balancing act are precisely fixed. It is a relational ascertainment, aimed at putting the groups in inter-cultural dialogue, which judges often already carry out autonomously, without the help of the anthropologist, inserting in the opinion comparisons between the immigrant's practice and that known to them in their own cultural universe (e.g. forcing an Islamic woman to go to work without the Islamic veil would be like asking an Italian woman to go to work in a bikini; kissing a child on the genitals in Albania corresponds to caressing the child naked after a bath in Italy).

9. Does the practice cause harm?

This part of the test assesses whether the practice has caused harm and to what legal rights. The concept of harm must be considered from an anthropological perspective and not exclusively through the cultural lens of the majority. This question is part of the balancing test. With respect to the axiological scale of values, it should be noted that damage to the rights to life and permanent damage to the physical integrity of a subject are, to date, considered by comparative living law to be an insurmountable limit to cultural recognition (except in the case of male circumcision, which although implying a permanent and irreversible alteration is recognised in all European states).

10. What impact does the minority practice have on the culture, constitutional values, rights of the (Italian) majority?

The question is intended to illustrate what kind of reactions the cultural practice elicits on the majority in order to show the minority how its practice is read and perceived by Italians. The judge is asked to indicate precisely the values, rights and cultural elements of the majority that are compromised by the behaviour of others. This indication serves to avoid the generic argument 'the other's culture violates Western values' as it invites judges to identify more precisely the values actually at stake (e.g. the burqa in France impacts on the value of fraternity and living together that is felt particularly strongly in that country). The question has intercultural value: if the minority's practice is banned, at least the minority will know the precise reasons why this is the case and will be able to reflect on the need for a change within its own culture. It is important, however, that the majority does not use this demand to impose an ethnocracy, based solely on the values of the majority, for this must be truly essential values and rights. For example, values such as security, public order, urban decency cannot be considered superior in the axiological scale of rights and values to the protection of culture. Otherwise, there is a risk of replacing the model of pluralist democracy with that of a majority ethnocracy.

11. Does the practice perpetuate patriarchy?

Patriarchy is a 'system of oppression' that intersects with culture, but also constitutes a reality in its own right. Considering that gender equality is one of the most hotly debated issues and that many constitutions, international documents and judges resort to it as a counter-limit to multiculturalism, it seems appropriate to consolidate this topos in the test. At the comparative level, judicial arguments reconfiguring many cultural crimes as gender crimes (e.g. female genital mutilation, honour killings) are increasing. The reference to patriarchy can be made in the test with these caveats: the notion of patriarchy may be a Western construct to be corrected therefore with the anthropological gaze; and there are forms of benevolent patriarchy with which women themselves negotiate and from which they derive advantages, so the decision should take these profiles into account.

12. What good reasons does the minority present for continuing the practice? The criterion of an equally valid life choice.

The judge is called upon to ascertain and then explain in the opinion why the minority wants to continue a cultural practice. Such a question, when asked by judges, produces useful results from an intercultural perspective: on the one hand, it may lead to the discovery that the values followed by the minority do not differ that much from those of the majority; on the other hand, when the logics are opposed, understanding those of others may open up unexpected spaces for recognition. By demonstrating that, even if opposed to a practice of the majority, the same contains a model of life that is equally meaningful (meaningful life), the balancing could be resolved in the sense of recognising the equal validity of the minority's behaviour (e.g. the Amish in the USA have been granted two years' exemption from school attendance because they practice forms of practical teaching-learning by doing in a non-competitive and equally formative context for children). This ascertainment is useful in describing the value framework underlying a behaviour and thus illuminating its understanding and fostering an intercultural dialogue from which the majority itself could learn. Indeed, in the long run, the majority might even decide to abandon its own cultural practices and adopt those of the minority. Letting the ruling explain to its audience the meaningful life of the minority could be the start of a fruitful intercultural transformation.

3. Relational part

Questions eight to twelve are the relational part of the test, which can also be defined as the intercultural part, aimed at bringing the minority culture into dialogue with that of the Italian majority.

After answering these twelve questions, the judge will have a more accurate anthropological view of the case and the issues involved in the balancing act. This is not, however, a one-sided and definitive instrument. The same judges who have already experimented with this test have, on occasion, supplemented it with questions they deemed necessary to better understand the case under examination