Abstract
This paper analyzes the state of cultural expertise in Italy and then focuses on how it can be improved through a kind of cultural expertise that Italian academics, judges, and lawyers are currently debating: the so-called “cultural test”. This is a legal test for dealing with culture, which originally emerged as judicial tool in Northern American courts: It consists of a set of pre-established questions that a judge has to answer in order to decide whether or not to accept a cultural claim made by a migrant or by a person that belongs to minority communities. Whereas some questions of the cultural test refer to typical legal balancing between rights, other questions incorporate anthropological knowledge within the trial, requiring the judge to analyze the cultural practice at issue, its historical origin, the importance it has within the community, and other information about which the judge would not be sufficiently knowledgeable without resorting to anthropology. In this sense, the “cultural test” is a form of standardized cultural expertise that helps both the judge and the cultural expert in their tasks. The paper reveals both the arguments against and those in favor of the adoption of the “cultural test” and how they are currently unfolding in the Italian debate.
Highlights
Law and anthropology exist within diverse epistemological and methodological fields; they have different aims and different ways of dealing with the diversity of human behavior
I have focused on the “cultural test”: a legal test for dealing with culture that can be considered as a type of cultural expertise
I have claimed that the cultural test falls within the current broad phenomenology of cultural expertise since, within its thirteen questions and within questions 1–5 and 9, it permits to imbue legal proceedings with knowledge about culture
Summary
Law and anthropology exist within diverse epistemological and methodological fields; they have different aims (e.g., descriptive, anthropology/prescriptive, the law) and different ways of dealing with the diversity of human behavior. Because the “cultural test” is a tool designed by jurists, a more appropriate referential terminology might be: “a legal test for dealing with culture” Scholars adopted this judicial wording thereafter (Dundes Renteln 2004; Eisenberg 2009; Dore 2016; Basile 2017; Ruggiu 2019), and this paper uses the common terminology of the cultural test with the caveat that “cultural” does not mean that the test necessarily reflects the view of anthropology on culture. This tool, already used in some jurisdictions in Canada and the United States, in ways that are not regarded as satisfactory (Borrows 1997–1998), is currently being debated in Italy by judges, lawyers, and legal academics. By looking into the Italian debate, the article aims to provide more general suggestions useful at a comparative level on how judges can be guided in incorporating anthropological knowledge into the trial through the cultural test
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