One value, many practices
​
The practices and behaviours linked to the time of mourning, burial and in general concerning the treatment of a body after death and the ancestor worship throughout the life of their living loved ones may be considerably varied, but they all lead back to the same value component: the feeling of veneration and care for the dead, even more so if they belong to one's own emotional sphere. This sentiment is linked to a twofold urgency in most beliefs: that of guiding loved ones towards afterlife existences, variously understood (eternal life, reincarnation, reunion with the earth and/or nature, etc.); and that of facilitating the detachment between the deceased and those linked to them who have remained alive. It can be found in any form of culture and in any age, albeit in extremely different ways and with very different meanings. It manifests itself individually, but also collectively, and is usually only lost in those situations in which the human being seems to lose his very essence of humanity (think, for instance, of genocidal wars).
In other words, these practices take on existential and profound dimensions in the lives of individuals, and consequently, so do the controversies that may arise in relation to them.
In spite of the fact that they can be traced back to a single value component, these practices, especially if they refer to cultures other than the majority culture, are particularly susceptible to conflict with the various norms that the different legal systems put in place to make the management of mourning compatible with the interests of the community, first and foremost with that of public health.[1]

US and Australian jurisprudence

The attention of doctrine and jurisprudence to these issues, and the possible multicultural implications that may arise from them, are certainly much more pronounced in those contexts where coexistence between different cultures has a longer history.
Taking some American and Australian pronouncements as an example, it is possible to understand some of the problems that the variability of funeral rituals or ways of experiencing mourning may cause at the legal level in a multicultural society. Among the most relevant ones identified by certain scholars (Renteln, 2004; Goodchild, 2021) include, for instance: the opposition of the relatives of the deceased to an autopsy examination, which for some cultures and religions is a form of corruption and offence to the body, capable in some cases of hindering access to the afterlife;[2] negligence with regard to the treatment of the body by healthcare facilities or funeral parlours that prevent them from fully carrying out rituals and/or funeral wakes in accordance with their cultural and religious customs, creating further suffering for the relatives of the deceased;[3] and different ways of dealing with mourning in the culture of origin, interpreted in court as forms of unsuitability to care for children and/or grandchildren.[4] In other cases the disputes concern, on the other hand, conflicts that arise within family groups, even those which appear homogeneous from a cultural point of view, over the choice of burial place, between more traditional sites typical of their community of origin or ones which are more 'modern' and homologated to the rituals in use in the majority society.[5]
In some of these disputes, relatives of the deceased often ask the courts to award damages for the suffering they have suffered, such as in the case of objections and challenges to autopsy examinations, especially when carried out without consent, or other culturally inappropriate treatment of the deceased's body. In other disputes, however, judicial intervention is required to decree burial places and arrangements. ​

In Australian pronouncements, for example, the judge is called upon to carry out a balancing act between the different interests involved: the possible cultural demands made by some of the deceased's relatives, the deceased's probable wishes, especially in the absence of testamentary provisions, and the wishes and sensitivities of those most affectively attached to the deceased (children, spouse, common law spouse).
In some contexts, moreover, the issue of the cult of the dead and the importance of the bond with one's ancestors has become intertwined with that of the fundamental rights of colonised native peoples. In the USA, for example, for many years, funerary sites, tombs, human remains, grave goods and sacred objects related to the cult of the dead belonging to indigenous peoples were dismantled and plundered for the commercial development of urban and residential areas,[6] acquired by cultural institutes, including governmental ones, to become the subject of scientific research,[7] and displayed to enrich collections, without any involvement or consent of the direct descendants or tribes to which they belonged. As a matter of fact, these graves and dead were denied the dignity and respect that is normally present towards the dead and graves of other peoples.
It had become evident that the already existing rules on respecting the dignity of the dead did not allow this situation to be curbed. According to some, these practices violated constitutional principles: the egalitarian principle (equal protection as enshrined in the 14th and 15th Amendments of the US Constitution, which was violated because it created strong discrimination in the protection of the burials and human remains of natives), or the right to religious freedom (as enshrined in the 1st Amendment). Thus in 1990, partly thanks to the Native American rights movements, the federal government decided to intervene with a special act, the Native American Graves Protection Act (NAGPRA), enacted on 16 November.
This law established that, from that date, all human remains and any grave goods or sacred objects found in planned or random excavations from the effective date of the act, on federal or tribally owned lands, are the property of the native descendants of the tribe to which they belong, or those related to it, either directly or if not identifiable. The Act also requires federal museums and cultural institutions that receive federal funding to inventory human remains, grave goods or sacred objects of indigenous origin, facilitate their return to direct descendants or the tribes to which they belong, and enter into consultations with them.[8] This federal law sought to fully realise the human rights of indigenous peoples by facilitating the return of remains and grave goods and finally recognising their existential and religious as well as scientific or cultural value. The law was then amended in December 2023[9] to further implement these protections. Its full implementation is complex. The provisions foresee a number of positive actions by institutions that come into contact with or possess such funerary material, such as an inventory of possessed objects and consultation with the tribes concerned. In addition, the law establishes specific sanctions for institutions that do not comply and subsidies for those that cooperate in restitution. However, a limitation of the protection lies in the fact that the legislation only covers federal, and not state, institutions. In addition, the inventories cover a considerable amount of sacred material[10] which is, however, only a fraction of the millions of native objects and remains dispersed among other museums or private collections. In spite of these limitations, this is a very important act that allows for the creation of a participatory network between the federal government, the institutions of science and culture and the native peoples concerned, enhances cultural exchange and promotes respect for the ancestors of indigenous people, who have too often been dehumanised in the past and seen as mere objects of study or collectors' items.
 

Italy
​
Especially in countries where the phenomenon of immigration is relatively recent, such as Italy, there are far fewer doctrinal and jurisprudential reflections on these issues. The subject of another culture is perceived as a subject in continuous movement (Gusman, 2010), which is why the moment of his death is a secondary phenomenon that little concerns the majority society. Sometimes it is the immigrant himself who expresses the desire to return to his homeland after death. The impossibility of being able to perform certain rituals in the host country, the limited presence of cemeteries for foreigners and, in general, the host community's mistrust of his traditions related to the cult of the dead is an element that often accentuates the sense of exclusion.
It is certain that also in the Italian legal system, in the abstract, there could be conflicts relating to such practices. Some funeral rituals could be equivocated in our legal system as true and proper offensive acts, violating, for example, the rules in the penal code that protect the sentiment of piety for the dead (Art. 407 et seq.). Or other controversies might arise if, for cultural or religious reasons, the rules laid down in the mortuary regulations or in other hygienic and sanitary provisions for the treatment of the body after death were not respected.[11] However, these do not seem to be frequent cases and this is partly due to the great ability of minorities to 'negotiate their own rituals' (Gusman, 2010) and make them compatible with the provisions of the host society.
It is worth pointing out that when Italian jurisprudence has dealt with issues related to the management of mourning, of the body after death and above all of any suffering experienced by the relatives of the deceased as a result of negligence and other disrespectful conduct on the part of the various operators involved, even if not with reference to the cultural subject matter, it has traced some of these situations to constitutionally guaranteed rights which are sometimes susceptible, in the event of their injury, to be compensated in the form of non-asset damage.[12] Significant in this regard is the distinction, sometimes referred to in case law, between primary sepulchral rights, such as those to which each person is entitled to be buried or to bury others in a given sepulchre - a real funerary artefact, (cemetery niches, chapels and family tombs), usually given in concession by the administration to private individuals, for a given period of time (Ramuschi, 2019) - and secondary burial rights, of a very personal and intransmissible nature, due to the relatives of the person lying in a tomb. According to this jurisprudential interpretation, these multifaceted rights consist of the possibility of access to the tomb, of opposing any transformation that would undermine the respect due to the remains, and of the relatives' interest in having a place to honour the deceased according to Article 2 of the Constitution, together with Article 19 of the Constitution on religious freedom.[13]
In affirming that 'the interest in the cult of the dead is not only harmed by the destruction or dispersal of the corpse, but also by the imposition of forms of worship that are not previously accepted by the relatives of the deceased' and in attributing these aspects of spirituality to forms of manifestation of personality and religious freedom, the Supreme Court opens the way to attributing relevance to all issues related to the cult of the dead which have such an impact on the existence of individuals, thus offering a perspective that could potentially be extended to disputes on the subject of mourning that have multicultural connotations.

Notes

[1] Just think of the rules laid down in the Mortuary Police Regulations in Italian law (Presidential Decree 285/1990) or the precise provisions on cremation and ashes dispersal (Law 130/2001).

[2] Some examples from US jurisprudence: the Albareti v. Hirsch ruling (1993) concerned the case of a Muslim man who was killed in Manhattan during a robbery in the shop where he worked and on whom an autopsy was performed despite the opposition of his relatives; the You Vang Yang v. Sturner ruling (1990) concerned a young Hmong man, Neng Yang, a resident of Rhode Island, who had died in hospital from unknown causes and on whom doctors had performed an autopsy despite the opposition of his relatives. Sturner (1990) concerned a young Hmong man, Neng Yang, a resident of Rhode Island, who had died in a hospital from unknown causes and on whom the doctors had performed an autopsy to ensure that he did not have a contagious disease, without obtaining the consent of his relatives who culturally did not accept it; the ruling in Montgomery v. County of Clinton (1990, 1991, p. 1), which was not accepted by the doctors. See also County of Clinton (1990, 1991) which concerned a young Jewish boy, Sannie Montgomery, who died in a shooting during a police chase in Michigan and on whom an autopsy was performed without informing his mother of the procedure. For a more detailed discussion of these pronouncements, see Renteln (2004) pp. 160-167, wherein it is pointed out that for some cultures, including Muslim, Orthodox Jewish, or for some Mexican or Hmong ethnic groups, autopsy is a form of corruption of the body that in some cases even prevents the soul of the deceased from accessing eternal life after death, can lead to perpetual damnation and even have repercussions on the lives of surviving relatives.

[3] This was the case, for example, in the American case Lott v. State and Tuminelli v. State (1962), in which the medical staff exchanged the bodies of two women who had died in the same hospital a short time apart - Rose Lott, a Catholic, and Mary Tuminelli, an Orthodox Jew - in the mortuary and each of them was prepared for the ritual that was contrary to their own beliefs (Renteln 2004, pp. 171 and 172); the case Doersching v. State Funeral Directors Board (1987), on the other hand, which took place in Mexico, concerned a funeral parlour that had not properly carried out the embalming of a deceased person's body, thus preventing the Mexican family from holding a regular wake (Renteln, 2004, pp. 172 and 173).

[4] This was the case in which the social services had deemed a grandmother of Greek origin unfit for custody of her grandson, fatherless and abandoned by his mother, because the grandmother appeared to be too persevering in the mourning of her child (she kept many photos of the deceased in the house, surrounded by small lights, and wore black). The decision (In the Matter of Peter L. Jr., Christina L., v. James Krauskopf, as a Commissioner of Social Servcice, 1983) was upheld in the first instance, but then overturned by the Supreme Court of the State of New York, which attributed the grandmother's attitude to her and the child's cultural heritage and found it appropriate. For a more detailed discussion see Ruggiu (2012, p. 39 ff.).

[5] For example, in the Australian case Kitchener v Magistrate Thomas (2019), which occurred in New South Wales, following the death of an Aboriginal man, a conflict arose between the latter's father, who wanted his son to be buried in his village of origin and his de facto wife, who did not belong to the Aboriginal community and requested that her husband be buried close to his place of residence so that the couple's children could visit him frequently. Frail v Shorey (2021), also in New South Wales, concerned the burial of two children who died in a car accident. Both parents were Aboriginal, but belonged to two different communities and were separated. The mother requested that the children be buried in the village where they had grown up and where she resided, according to traditional Aboriginal ceremony. The father, on the other hand, asked that they be cremated and the ashes divided between the two parents. The former argued that cremation was not permitted in their culture of origin and provided cultural evidence to the court in this regard. The second, on the other hand, argued that it was permitted. In the first case, the judge valued the will of the surviving widow over the cultural claims made by the deceased's father, while stating that he considered both claims valid. In the second case, on the other hand, the cultural wishes of the children's mother were better safeguarded, considering the evidence put forward by the latter to be more reliable, especially in relation to the mother's community's opposition to cremation. The two cases are discussed in Goodchild, Kelly (2021).

[6] In this respect, the case Wana the Bear v. Community Construction (1982), dealt with by the California Courts of Appeal, is emblematic. In this case, approximately 200 graves of individuals belonging to the Californian Miwok tribe were demolished for the construction of a residential area in Stockton, California. A descendant of the tribe, Wana the Bear, had tried to oppose the continuation of the work, explaining that it was a cemetery area protected by law. Nevertheless, the California Courts of Appeal ruled in favour of the construction company, assuming that the site could not be considered a cemetery, as its use and function had long since lapsed. Case described in https://law.justia.com/cases/california/court-of-appeal/3d/128/536.html .

[7] At times, studies have been done to prove the alleged 'inferiority' of indigenous peoples or to fuel the illegal market for indigenous artifacts. For a more detailed discussion on the subject see Trope, J. F., and Walter R. Echo-Hawk, (1992) Nafziger (2009); Kuprecht (2012).

[8] The evidence of the link between remains, grave goods and tribes is based on the concept of 'cultural affiliation', which can be demonstrated not only through scientific, historical, archaeological and anthropological examinations, but also through the oral traditions of tribes (Kuprecht 2012).

[9]Available in https://www.federalregister.gov/documents/2023/12/13/2023-27040/native-american-graves-protection-and-repatriation-act-systematic-processes-for-disposition-or

[10] In Kuprecht (2012), the 2010 United States Government Accountability Office (U.S. GAO, Report to Congressional Requesters) report is quoted that at least 209,626 sacred objects were believed to be related to native tribes by the institutes called to inventory them.

[11] One thinks, for example, of the rules that require a certain period of time before the burial of the body, which in some cultures must take place as soon as possible, or of other prescriptions that are primarily intended to protect the health of the relatives of the deceased and the community in general.

[12] This is the case in the judgment of the Supreme Court of Cassation, section III - 10/01/2023, no. 370, which concerns the cremation of a deceased person after the twenty-year concession, carried out by mistake by the competent administration, in the belief that the relatives of the deceased were unavailable. The non-expression of consent by the relatives concerning cremation or reburial had resulted, instead, from a failure to receive the notice sent by the competent authorities to the wrong address. Compensation for non-pecuniary damage was thus awarded to the relatives of the deceased because they had wanted to proceed with a new burial and not with cremation.

[13] Cass. Civ., sec. III - 10/01/2023, no. 370 cit. refers to the 'protection of the relative's feelings towards the deceased' and with regard to secondary burial rights it is specified that: "secondary rights of burial have as their content sentiments that enhance the spiritual aspect of man and constitute the highest and most fundamental part of the community's affective heritage, and represent from the legal point of view the class of values most positively qualified by law and protected both in function of their implementation, and against possible violations."