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Notes
See Richard A Shweder, Martha Minow, and Hazel Rose Markus (eds), Engaging Cultural Differences: The Multicultural Challenge in Liberal Democracies (Russell Sage Foundation 2004) 4–7. The authors posit that global economic developments and emerging cultural trends have led to liberal democracies becoming more and more heterogenous and multicultural. It is in this setting that they are forced to test the limits of their own tolerance for cultural diversity and set new legal standards.
Rainer Forst, Normativity and Power: Analyzing Social Orders of Justification (Oxford University Press 2017) 105–106. The author points out the frequency of disputes that arise in the midst of social and cultural change that is increasingly apparent in multicultural societies, and proceeds to analyse the manner in which the German Federal Constitutional Court is drawn into this dynamic. See also, for an alternative view on the role of courts in decisions on cultural values, Robert Post, ‘Law and Cultural Conflict’ (2003) 78 Chicago-Kent Law Review 485.
Cultural defense is useful in providing additional context or justification for certain behaviour in culturally-oriented crimes, in the hopes of an acquittal or a mitigated sentence. The concept is defined as ‘information provided to the courts on the cultural background of people and facts in criminal law’ in Livia Holden, ‘What is Cultural Expertise?’ in Livia Holden (ed), Cultural Expertise, Law, and Rights: A Comprehensive Guide (Routledge 2023) 13 and references therein.
For instance, Ruggiu mentions the ‘limits’ imposed by the Supreme Court of Cassation (Italy). The Court reinforces the position of cultural practices and is comfortable elevating them above other customs, so long as they do not clash with ‘the cardinal rules of the Italian order’, its ‘criminal rules’ or its ‘fundamental rights’ (p. 81).
Cultural expertise is defined as ‘the special knowledge deployed by the experts of laws and cultures for assisting decision-making authorities in the assessment of evidence with information on the socio-legal backgrounds of facts and persons involved’ in Holden, ‘What is Cultural Expertise?’ (n 3) 12. Ruggiu believes that a certain level of cultural knowledge is required to answer the questions in the test, such as to determine whether the cultural aspect is invokable, and which considerations to give weight to. Therefore, the court benefits from recourse to a cultural expert consultation (p. 187).
Some of the notable cases discussed and chosen by Ruggiu for their complexity, that typify the cultural conflict are: the Kimura case (a Japanese mother who drowns her newborn daughter and four-year old son with the intention to commit suicide in the US, [pp. 3–7]), the Saleem case (a Pakistani father carrying out an honor killing of his daughter in Italy, [pp. 7–10]), the Kassam case (of a Moroccan who beat and raped his wife in Italy, [pp. 10–12]) and related cases of physical and sexual abuse, child neglect, abuse, and/or custody cases such as a Roma child engaged in begging or manghel in Italy (p. 13), the Kargar case of the father that kisses his son on the genitals in the US (pp. 17–19); cases of cannibalism from Australia and Papua New Guinea (p. 21), and others. She also does not fail to bring up discussions surrounding critical issues such as the genital mutilation/circumcision (pp. 29, 83), polygamy (pp. 97, 135), and the burqa or veil (p. 85) followed with an extensive discussions in Chapter 4.
Topoi (singular: topos) refers to recurring themes and patterns, an organisational technique applied to legal thought by German jurist Theodor Viehweg in his 1962 work Topica e giurisprudenza. See Theodor Viehweg, Topik und jurisprudenz (C H Beck 1953) (explained by Ruggiu in detail on pp. 26–27).
Emphasis added.
Livia Holden, ‘Anthropologists as Experts: Cultural Expertise, Colonialism, and Positionality’ (2022) 47(2) Law & Social Inquiry 669, 686.
Emphasis added.
Emphasis added.
Emphasis added. The credibility enjoyed by expertise (due to factors such as elite discourse and public opinion) in the natural sciences as opposed to the social sciences is compared using metrics such as judicial gatekeeping in this study, that suggests that ‘expert witnesses from some disciplines are more likely than others to overcome challenges to their admissibility’: Timothy L O’Brien, Stephen L Hawkins and Adam Loesch, ‘Scientific Disciplines and the Admissibility of Expert Evidence in Courts’ (2022) 8 Socius 1, 12.
Lawrence Rosen, ‘Expert Testimony in the Social Sciences: A Historical Overview of Contemporary Issues’ (2020) 38 Law and History Review 123, 135.
Judicial bias is a well-explored subject in legal literature. See Donald C Nugent, ‘Judicial Bias’ (1994) 42 Cleveland State Law Review 1; Jeffrey A Segal and Harold J Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge University Press 2002).
The case relates to an accusation of maltreatment of his Lithuanian girlfriend by Maurizio Pusceddu, a 29-year old Sardinian man who had emigrated to Stadthagen, Germany. He alleged that she had betrayed him, so he kept her prisoner for three weeks, repeatedly subjected her to sexual violence, injected heroin against her will, extinguished cigarettes on her body and urinated on her. A German trial court assumed the role of an anthropologist and reduced the penalty from eight to six years, citing mitigating ‘ethno-cultural’ circumstances. The Court stated that Mr Pusceddu ‘is a Sardinian. The picture of the role of man and woman which exists in his own country can hardly count as an excuse, but it must be taken into account as a mitigating factor’ (p. 12). The judgement met with backlash from Italy, due to the essentialising portrayal, with little regard for counterarguments ‘The decision was overturned on appeal after Italian protests’ (pp. 12–13).
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Chodavarapu, S.P. Ilenia Ruggiu, Culture and the Judiciary: The Anthropologist Judge. Jindal Global Law Review 14, 325–331 (2023). https://doi.org/10.1007/s41020-023-00205-z
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DOI: https://doi.org/10.1007/s41020-023-00205-z