The importance of emotionality in judicial inquiry

Emotions in procedural activity: understanding cultural otherness through emotional reactions
 
In the context of judicial activity, the treatment of emotions is of great importance, and this aspect is particularly evident when dealing with cultural otherness. In fact, although the law is concerned with regulating human behaviour and the life of people in society, often, for various reasons - reduced timeframes, language difficulties, lack of attention to the 'other' perspective - one tends to neglect the observation of the ways of interacting with cultural otherness, thus forgetting the impact that participation in the discourse may have on the emotions of a foreigner, immigrant and/or member of a cultural minority.
The effort that is attempted during trial activity seems to be mainly to rationalise and thus minimise the role of emotions, in line with the idea that law should be conceived as purely rational and distant from the emotional world. However, procedural and communicative activity with the subjects is intrinsically connected to emotions, and elicits emotional reactions that can determine the course of the trial activity and the communicative development of the defendant and/or asylum seeker. For this reason, special attention should be paid to these emotional profiles during court procedures and their impact should not be minimised; this does not mean setting aside an approach of rationality and neutrality, but rather it means understanding which communicative tools to put into practice during the inquiry in order to ensure that the emotional component does not become limiting for the foreign subject.
Moreover, emotions, if interpreted appropriately, do not exclude rationality; on the contrary, they can become a tool for a greater understanding of cultural otherness, for accessing ways of life and experiences that would otherwise remain unknown. [1] The process of understanding the 'other', therefore, can be accessed by observing the way one looks, sits, answers or does not answer questions on certain issues, or by observing the difficulties that some subjects may have in dialoguing with people of a certain gender or age group. These emotional manifestations not only can, but should be integrated into the processes of legal understanding, as they could be, to borrow the words of the French sociologist Daniel Bertaux, real 'clues'[2] of observation and research, i.e. descriptions that refer to 'other' social mechanisms, and which can help the judge to better understand how to direct the inquiry. Observing these 'clues' therefore allows one to enter into an 'other' culture, to observe the omissions, exaltations and denials that emerged from the inquiry, and thus transforming emotions into real vehicles of understanding that, in order to be interpreted, need a good knowledge of the literature on that culture, or the help of a cultural expert. Concrete examples of this can be seen in keeping one's eyes downcast and not looking at the interlocutor or speaking in a soft voice. Such attitudes are a sign of respect in some groups, but could be interpreted in Italy as a gesture of distance or ambiguity, or even as signs that the person is lying or unsure of their statements. Consider again the difficulties that some people may have in making confessions to the police when they come from states where the police are corrupt and, therefore, not considered capable of protecting their rights.


[1] For more on the role of emotions from an anthropological analysis perspective, the following texts are recommended: Geertz, H., 1959, 'The Vocabulary of Emotion: A Study of Javanese Socialization Processes', in Psychiatry, No. 22, pp. 225-237, and Reddy, W. M., 1999, 'Emotional Liberty: Politics and History in the Anthropology of Emotions', in Cultural Anthropology, No. 14 (2), pp. 256-288 and Reddy, W. M., 2001b, 'The Logic of Action: Indeterminacy, Emotion, and Historical Narrative', in History and Theory, no. 40, pp. 10-33 and White, G., 1990, 'Moral discourse and the rhetorics of emotions', in L. AbuLughod, C. Lutz, eds., Language and the Politics of Emotion, Cambridge, Maison des Sciences de l'Homme-Cambridge University Press, pp. 46-68.

[2] Bertaux, D., 2008, Tales of Life. La prospettiva etnosociologica, Milan, FrancoAngeli (orig. ed. 1998).

Language difficulties and the role of the translator
 
The role of translation, both in criminal and civil contexts in relation to asylum and refugee claims, can be extremely complex, not only because of the difficulties in interpreting and 'restitution' of the 'other' perspective, but also and especially in relation to the emotional disparities between the participants in the inquiry. In these circumstances, one can often witness extremely challenging and stressful situations, characterised by a climate of fear and insecurity, as well as deeply painful narratives. It is common, in fact, for immigrants arriving in a new country to come up against various emotional obstacles stemming from their culture and social context: lack of trust in institutions, lack of positive experiences in the country of arrival and unfulfilled expectations; or family responsibilities in the country of origin and consequent difficulties in expressing themselves, as well as religious barriers or differences in gender roles; or more simply a lack of knowledge of the resources available in the country of arrival.
These elements can influence the interpreter and generate a series of tensions, misunderstandings and emotional closures, which consequently lead to reflection on the limits of his or her role. Faced with these difficulties, in fact, the translation inevitably assumes a function that goes beyond translation, and becomes a key element in understanding different cultures, thus occupying a prominent position in the arguments of the parties involved. This leads to a complex role for the interpreter, who on the one hand has to deal with the legal world, with which he collaborates on a daily basis, but from which he often feels estranged because he is not a legal professional, and on the other hand has to be the spokesperson for the communities for which he conveys communication, which he often disregards, or towards which he has a limited understanding in relation to the complexity of the socio-cultural dynamics that characterise them.
This complexity of the translator’s role is often overlooked, and it would seem that there is a tendency to see his or her role as a simple channel of communication that tries to overcome linguistic differences between the various parties - lawyer, judge, suspect or asylum seeker - without ever considering the possibility that the interpreter, if well trained, could act as a true intercultural mediator, thus becoming a valuable collaborator in conveying mutual understanding between the parties.