The Assimilationist Drift of Italian Jurisprudence on Integration in the Years of the ‘Refugee Crisis’

Abstract

The coexistence of different cultures in the same legal system is a given fact of contemporary ‘Western’ societies, produced by structural migratory phenomena that are not realistically reversible and that brought about the advent of the so-called ‘multicultural state’. In a multicultural state, a cultural majority lives side-by-side with one or more cultural, ethnic or religious minorities, who sometimes identify themselves with a set of values and principles that could be regarded as incompatible with those of the host country’s legal system, thus generating what has been described by scholars as a ‘meeting’ (or a ‘clash’) of cultures. This chapter documents the shift in Italian legal rulings on specific issues of migrant cultural practices in Italy towards a more assimilationist stance, reflecting the wider political dynamics of migrant and refugee arrivals in Italy.

1 Introduction

The coexistence of different cultures in the same legal system is a given fact of contemporary ‘Western’ societies, produced by structural migratory phenomena that are not realistically reversible and that brought about the advent of the so-called ‘multicultural state’. In a multicultural state, a cultural majority lives side-by-side with one or more cultural, ethnic or religious minorities, who sometimes identify themselves with a set of values and principles that could be regarded as incompatible with those of the host country’s legal system (Baldini, 2011; Bilancia, 2012; Fleiner & Fleiner, 2009; Taylor, 1992), thus generating what has been described by scholars as a ‘meeting’ (or a ‘clash’) of cultures (Huntington, 1993).

In this framework, the members of these ‘new minorities’ (Kymlicka, 1995) demand that their culture be recognised (Taylor, 1992) by the host legal system and invoke a right to maintain their unique ways of life. From a Constitutional Law perspective, the legal basis for the preservation of the cultural customs of the members of new minorities is usually attributed to a fundamental ‘right to culture’ (defined as the right to keep one’s original culture and not to be forcefully assimilated into the cultural majority) (Scuto, 2015) and to its specifications (such as the right to freedom of religion, linguistic rights and the parents’ right to educate their children according to their philosophical and cultural beliefs), which compose the category of the so-called ‘cultural’ (or ‘multicultural’) rights (Cavaggion, 2018).

However, the counter-majoritarian enforcement of these cultural rights can sometimes be problematic, especially when they are invoked to justify cultural practices that are prohibited by law in the host legal system¹ or even infringe on some of the fundamental and identifying values of Western constitutionalism itself (such as, for example, honour crimes, forced marriages, female genital mutilation, etc.).

From a constitutional perspective, cultural clashes are nothing more than conflicts between competing constitutional interests: on the one hand, the minorities’ cultural rights and, on the other, the rival constitutional interest of the host legal system to defend its non-renounceable fundamental principles – its identifying core – as defined by its legislator. This constitutional conflict has become one of those factors of ‘crisis’ that in turn generate anxieties that affect the experiences of both those migrating or trying to settle in a new society, and the members of receiving societies who perceive newcomers as an economic, social or cultural ‘threat’ (as pointed out by Jakobson, King, Moroşanu and Vetik in the Introduction to this book). When faced with the new minorities’ claims based on cultural rights and aimed at justifying cultural practices that are prohibited by the law of the host society, European policymakers have historically adopted two significantly diverging models, based on different balancing points between the new minorities’ demand to be recognised and the host legal system’s need to preserve a common core of identifying values.²

In short (and with some degree of approximation), the assimilationist model (originally adopted in France) fundamentally favours the second interest and aims to absorb the members of cultural minorities into the majority’s culture. This is done with a range of proactive measures by the legislator which explicitly prohibit some specific behaviours that are regarded as incompatible with the identifying values of the French constitutional system – e.g. the ban on the face veil in public spaces or on de facto polygamy (Bilancia, 2012).

The multicultural model (originally adopted in the UK) favours the first interest and aims to accommodate multicultural claims whenever it is possible to do so (an example would be the Motorcycle Crash Helmets Religious Exemption Act of 1976, which allows men belonging to the Sikh minority to wear a turban instead of a helmet while riding a motorbike).

Other models, such as the German or the Dutch ones, are widely regarded as a mix of these two European historical models and, consequently, as an intermediate balancing of the two relevant constitutional interests. At any rate, it must be noted that every one of the aforementioned approaches seems to have failed in promoting social cohesion and integration.³ This, in turn, led to a move beyond clear-cut, all-encompassing ‘models’ of integration, and to attempts at developing new and more flexible policies to deal with the issues of integration across Europe.

2 The Italian Jurisprudential Model of Integration

The approach of the Italian legislator to issues connected to immigration has historically been a passive one. The matter was regulated, up until the 1990s, by legislation adopted during the Fascist era that was never really updated – this also because Italy was, for the better part of the last century, a country of emigrants and that tendency slowly started to shift only during the 1980s (Scuto, 2012).

The Italian legislator’s attempts at regulating immigration have always been prompted by national and supranational contingencies and were never inspired by a far-sighted approach. Consequently, Italian policymakers constantly found themselves trailing, while trying to adjust to the subsequent gradual increases in the migratory flows directed towards Italy.⁴ The only noticeable exception was Law no. 40 of 6 March 1998 (the so-called ‘Turco-Napolitano Law’) which attempted to regulate the matter of immigration in a structural and comprehensive manner. However, the law was never fully implemented in the Italian legal system, due also to a significant (negative) shift in public sentiment on immigration at the start of the new millennium (Bonetti, 2004).

Consequently, just a couple of years after its entry into force, Law no. 40/1998 was heavily amended (or, rather, it could be argued, dismantled) by Law no. 189 of 30 July 2002 (the so-called ‘Bossi-Fini Law’). From that point on, the tendency of the Italian policymaker to deal with immigration as an emergency (rather than as a structural phenomenon) consolidated itself. The real magnitude of the phenomenon was sensationalised, amplified and distorted by a number of political parties and media outlets, which established a false correlation between immigration and public security, generating increasing levels of anxiety with regard to the perception of migrants in Italian society. This correlation was cemented by Law no. 94 of 15 July 2009, which operated on the basis of the presumption that the immigrant (and especially the illegal immigrant) poses a danger for the host society, thus criminalising several aspects of the migratory phenomenon (Scuto, 2012).

In light of the above, it could be argued that the obstinacy of the Italian policymaker in denying the structural nature of the migratory phenomenon and regulating it as a contingent emergency of sorts, kickstarted a vicious circle in which the legislator is consistently forced to chase the escalating issues (and anxieties) that are amplified by its own inactivity (Biondi Dal Monte, 2016).

In this context, it comes as no surprise that, when the issues connected to multiculturalism finally exploded in the Italian legal system and choosing a model of integration with the new minorities became a pressing necessity, the Italian legislator once again fell victim to its historical approach (Cerrina Feroni & Federico, 2017; Scuto, 2015), which was almost automatically taken from the issues of immigration (the regulation of migratory flows) and transposed to the issues of integration (the regulation of the interaction between different cultural groups in the legal system).

The result is that the Italian legal system, as opposed to those of other European countries, currently does not have (and never had) a recognisable model of integration or, at least, a defined far-sighted take on the issues of integration (Cerrina Feroni, 2015; Guolo, 2011; Michetti, 2015; Scuto, 2015). The legislator never adopted structural and coherent multicultural policies, not even at the end of the 1990s, when multiculturalism was not as divisive an issue as it is today (since Italy had just become a country of immigration). Once that occasion was lost, regulating the matter gradually became more and more problematic as the years went by, due to the so-called ‘consensus trap’ (Grosso, 2016) – the fear of an electoral backlash paralysed the policymaker, which effectively renounced its role on divisive issues such as immigration and integration (Guolo, 2011).

In the resulting legislative void, the task of balancing the cultural rights of the members of the new minorities with the interest of the Italian legal system to defend its non-renounceable fundamental principles and rights fell almost entirely on the judiciary’s shoulders. After all, ignoring the new minorities’ requests for recognition does not make them disappear: if these requests are deprived of any legislative regulation, they will naturally find their way to the courts (Olivito, 2012). In Italy this happened at all the levels and articulations of the jurisdiction and therefore cultural clashes reached both ordinary and administrative courts, up to the highest level of the national and supranational system of protection of fundamental rights.

It can be safely stated that, in the Italian legal system, when it comes to the matter of multiculturalism, the judiciary has been effectively compensating for the legislator’s shortcomings and, in most cases, Italian courts and tribunals have been posing a limit to the most assimilationist and discriminatory legislative policies (Di Marco, 2012). In order to do so, Italian judges had to become, in a way, ‘anthropologist judges’ or interpreters of the cultures of the new minorities (Ruggiu, 2012). The judiciary’s role was redefined under pressure from the multicultural society, as judges became the first-instance mediators of multicultural conflicts and the first respondents to the anxieties of integration. Judges had to start listening and understanding the reasons of the members of the new minorities while interpreting the law in an evolutive and, in some ways, interdisciplinary and intercultural manner (Caputo, 2005). The work of the judiciary brought about the evolution of many sectors of a legal system that was originally devoted to the protection of the majoritarian cultural and some ‘qualified’ historical minorities, by gradually (and tiresomely) adapting it to the new needs of the multicultural state.

Safe to say that, after a first phase of adjustment, the Italian judiciary managed to strike a precarious but reasonable compromise between the need to recognise and protect the cultural rights of the new minorities and the need to maintain and preserve the non-renounceable and fundamental principles and rights of the constitutional system. The cornerstone of the Italian jurisprudence on integration was the principle that:

a multiethnic society, that more or less consciously accepts multiculturalism, cannot ignore a certain degree of cultural relativism, that allows to look at other civilisations without judging them according to our parameters [and that consequently, while balancing cultural rights, the judge] must be guided by a careful and enlightened interpretation of the relevant law.⁵

On the other hand, the Italian judiciary found that the limit to cultural rights was represented by:

the violation of the fundamental rules that shape and found the Italian legal system and the regulation of interpersonal relations [and in particular in respect of] the constitutional principles outlined by Article 2 of the Constitution, with regard to the protection of the fundamental human rights [and] Article 3 of the Constitution, with regard to equal social dignity, equality with no distinction on the basis of gender, and the Republic’s duty to remove those obstacles which, while effectively limiting freedom and equality, hinder the full development of the person.⁶

One could speak, therefore, of a ‘reasoned’ opening to cultural differences which, moving within the aforementioned boundaries, granted the new minorities’ requests for recognition of cultural rights in those cases in which the said requests did not infringe on the incompressible core of other non-renounceable constitutional rights or principles. Conversely, the requests for recognition of cultural rights were not granted if doing so would infringe on the core of other non-renounceable rights or principles of the Italian legal system.

Some scholars described this approach as the enforcement of a criterion of ‘human reasonableness’ (Di Marco, 2012, 29), which moves from the centrality of the individual and his/her rights recognised by Article 2 of the Constitution and recognises his/her specificities accordingly to Article 3 of the Constitution, thus avoiding an application of the law which would be formally equal but substantially unequal.

As I argue in subsequent sections, however, this jurisprudential model of resolution of the multicultural issues seems to be starting to show its limits, on the one hand due to the progressive increase in cultural pluralism that follows the growing multiculturalisation of Italian society (that results in the multiplication of judicial cases) and, on the other, more worryingly, due to some recent jurisprudential decisions that showed a significant drift from the ‘reasonable balancing’ that historically characterised the Italian courts’ approach. In light of the above, in order to better understand the Italian jurisprudential model of integration (and its current transformations and struggles), I first review some of the decisions that best exemplify the Italian judiciary’s take on cultural conflicts, both in cases in which cultural rights prevailed and in those in which they were sacrificed. This will allow me to highlight the balancing point singled out by the judiciary (in lieu of the legislator), which was constantly enforced by Italian courts until recently and that had seemingly provided, in most cases, for a peaceful composition of the multicultural fractures in Italian society.

3 Cases in Which Cultural Rights were Enforced

3.1 The Face Veil

In the Italian legal system there is no law that explicitly prohibits the so-called ‘face veil’, while a relatively old anti-terrorism law (Law no. 52 of 22 May 1975, the so-called ‘Reale Law’) – adopted during the so-called anni di piombo (‘Years of Lead’) – prohibits, in general, the wearing of any means aimed at making a person difficult to recognise in public (or open to the public) spaces, unless the item is worn for a ‘just cause’.⁷ Moreover, Article 85 of the TULPS (public security laws)⁸ prohibits the wearing of ‘masks’ in public (or open to the public) spaces. Therefore, the scholarly and jurisprudential debate focused prevalently on the possibility of applying Law no. 52/1975 and Article 85 of the TULPS to women who wear a face veil, while the conduct of women who wear a veil that does not cover the face has always been regarded as a legal exercise of the right to freedom of religion recognised by Article 19 of the Constitution.

The case of the face veil is emblematic of the passive approach of the Italian legislator to the issues of multiculturalism, since the policymaker never tried to regulate the most problematic aspects of this cultural practice, which were, nonetheless, clearly perceived by public opinion. In the legislator’s silence and starting in 2004, a number of mayors of northern municipalities decided to step in and issued a series of emergency ordinances (Cavaggion, 2016) which stated that Law no. 152/1975 and Article 85 of the TULPS should be automatically applied to women wearing a face veil. This resulted in the historic Decision no. 3076/2008 of the Council of State⁹ which laid down the principles that have regulated the issue of the face veil for the years to come and which still (mostly) regulate it today.

Firstly, the Council of State ruled out the possibility of regarding the face veil as an illegal ‘mask’ under Article 85 of the TULPS, as the veil is clearly not a ‘mask’ but, rather, a ‘traditional piece of clothing of some populations, still used nowadays as part of a religious practice’.

Secondly, the Council of State ruled that Law no. 152/1975 could not be applied to the face veil, as the ratio of this law is ‘avoiding that the use of helmets or other similar means could take place with the aim of avoiding recognition’ (in order to anonymously commit a crime), whereas the face veil ‘is not used, generally, to avoid recognition but, rather, as the expression of a tradition of some populations and cultures’. The exercise of religious freedom under Article 19 of the Constitution represents, consequently, a ‘just cause’, as required by Law no. 152/1975; therefore the Council of State concluded that ‘Law no. 152/1975 allows, in our legal system, that a person wears the face veil for religious or cultural motives’ in a public space.

Lastly, the Council of State singled out some particular cases in which the otherwise legal face veil could be specifically prohibited. These include: assemblies in a public or open to the public space, the removal of the veil for the time strictly necessary to allow the identification of the wearer if demanded by a public security officer and in buildings and offices characterised by ‘specific and sectorial needs’ that demand a more strict balancing of the rights and interests involved (such as the possible targets of terrorist attacks).

3.2 The Kafala

Another example of the protection of the cultural rights of new minorities’ members in the Italian jurisprudential model of integration is the case of the kafala, which is the instrument of Islamic law that ‘replaces’ adoption in Muslim legal systems – as adoption is expressly forbidden by the Quran (Malingreau, 2014). Kafala, as opposed to adoption, does not establish an effective parenting relationship between the ‘adopter’ (kafil) and the ‘adopted’ (makful) and the latter does not take the surname nor becomes an heir of the former (Le Boursicot, 2010).

Despite the apparent harmlessness of the instrument from a public-law perspective, at an early stage the Italian courts refused to recognise it due to its alleged incompatibility with Italian public order, thus denying family reunification visas to parents who entered into a kafala in a foreign legal system where the instrument is legal.¹⁰ The courts argued that the kafala’s rules and effects differed too much from those of adoption or foster care in the European legal tradition and that kafala was incompatible with the principle of equality (Article 3 of the Constitution), as it required the kafil to be a Muslim. Moreover, there was a concern that the kafala could be used to circumvent the national law on international adoptions.

However, this earlier case law was overruled in subsequent years by the Italian Court of Cassation, which found that the kafala should instead be regarded as a legal instrument and, therefore, as a legal basis for the family reunification of citizens and foreigners alike.¹¹ The court found that the right to the respect of family life and the right of families belonging to minoritarian cultures to be recognised and to preserve their unity should prevail on the state’s interest in defending its laws on international adoption – as such an interest is not part of the core principles that compose Italian public order, even more so if one considers that the kafala is widely recognised as a valid legal instrument by the main sources of international conventional law (Malingreau, 2014).

3.3 Inter Absentes Marriage

Inter absentes marriage is defined as a marriage in which one or both of the spouses is not physically attending the ceremony. In a recent case, Italian local government bodies invoked public order to refuse recognition¹² of an inter absentes marriage that was celebrated via Skype between an Italian citizen and a Pakistani citizen, according to the Pakistani tradition.¹³ More precisely, the public officers argued that the simultaneous physical presence of the spouses in the same place amounted to a core principle of the Italian legal system. Moreover, they argued that the inter absentes Islamic-law marriage, which is legal in Pakistan, does not ensure a real possibility to assess the validity of the woman’s consent, thus violating Italian public order in the form of the principle of gender equality.

Also, in this case, the higher Italian courts did not uphold such a wide compression of the cultural rights of the members of the new minorities, as the Court of Cassation found that public order consists only of the fundamental constitutional principles and rules that could not be amended even by the national legislator, of which the simultaneous physical presence of the spouses during the celebration of a marriage is not a part.¹⁴ Therefore, the wedding celebrated via Skype, according to the laws and cultural traditions of the spouses’ country of origin, should be regarded as legal in the Italian constitutional system, as an expression of the fundamental right to family life of the members of the new minorities.

4 Cases in Which the Fundamental Principles and Rights of the Italian Constitutional System were Enforced

4.1 Honour Crimes

Honour crimes are one of the most troubling issues connected to cultural clashes in the multicultural state. The question that needs to be answered is, basically, whether it is possible to take cultural elements into account in order to exclude or mitigate the responsibility for crimes that are particularly disruptive for the fundamental rights of the victims, such as the right to health or even the right to life. In these cases, the defendants invoke the right to culture (to keep one’s original culture) in its ‘purest’ form, as the right to continue to live according to a cultural code of conduct which openly violates the rules of the host legal system.

From this perspective, the first and foremost issue that the Italian judiciary had to tackle was determining whether recognising such a right could result, in some cases, in the acquittal of the defendant accused of an honour crime. The Court of Cassation was adamant in stating that cultural elements can never lead to the acquittal of the defendant in cases of honour crimes that controvened the right to life or to the right to health of the victim. This principle was affirmed by 2002, in a case that involved a member of the Muslim minority facing trial for repeated cases of physical abuse to his wife.¹⁵ The defence lawyers argued that the First- and Second-Instance Tribunals should have acquitted the man, because ‘the cultural and religious education, that is known to be particularly effective for Muslim men (such as the defendant)’ is so powerful that the defendant ‘did not know that he was abusing his wife’, since abuse is part of the ‘normal dynamics of a marriage’ in Muslim society. The court strongly rejected this argument, finding that it was contrary to ‘the laws that found the Italian legal system’, as the fundamental principles enclosed in Articles 2 and 3 of the Constitution (which include the right to health of the woman and the principle of gender equality) are ‘an insurmountable barricade against the implementation, in the Italian society, of customs and traditions that undermine the results of centuries of development of the fundamental human rights’.

Notwithstanding a slightly paternalistic (or even neocolonialistic) choice of language in the decision, the balancing outlined by the court seems acceptable in its core meaning and was sustained by the jurisprudence in the following years.

In 2008, the court reformulated the same principle, with a more appropriate language, as it stated that ‘the applicability of criminal law to citizens of different ethnicities and cultures that invoke sociological traditions of anthropological customs, must be adjusted in the light of behavioral variables’.¹⁶ However, such an adjustment must always meet the ‘limit of fundamental human rights’ (as prescribed by Articles 2 and 3 of the Constitution). Consequently, the court rejected the argument that the defendant could be acquitted because he, ‘as a Muslim citizen, understands family life and his powers and rights within it (as the pater familiae) in a way which is different to that of an Italian citizen’. The court argued that sustaining such an argument would be ‘contrary to the fundamental rules that found the Italian legal system and regulate interpersonal relations’.

4.2 Sexual Assault

The balancing act performed by the Italian judiciary with regard to cultural defences in cases of sexual assault reached fundamentally the same conclusions.

In 2016, the Court of Cassation had to assess the case of a man belonging to the Bengali minority who was accused of complicity in sexual assault for not having properly protected his 15-year-old daughter, because he made her enter into a forced marriage in which she was repeatedly assaulted and abused by her husband.¹⁷ The First- and Second-Instance Tribunals did not find the father guilty of complicity in the sexual assault but only of battery, as the judges argued that the man did not act (in his mind) in order to expose his daughter to the husband’s violence. In other words, the tribunals found that the father did not realise the implications of his actions because this kind of ‘abuse finds its roots in the defendant’s cultural education’, so he perceived the said abuse as part of a normal marriage.

However, the Court of Cassation overruled the first- and second-instance decisions and found the man guilty of both battery and complicity in sexual assault, arguing that cultural elements can never be invoked in order to justify such a severe violation of the incompressible core of a woman’s right to health and self-determination. More precisely, the Court stated that

finding, as the First-Instance Tribunal did, that the father, just because of an alleged cultural education (which, in any case, would be deprived of any justification) could legitimately force his daughter to submit to the will of his son-in-law, is a triviality that cannot be granted access into our legal system.

5 The Shift in the Italian Jurisprudential Model of Integration in the Years of the ‘Refugee Crisis’

In light of the above, the Italian jurisprudential model of integration seems to have reached a reasonable balance between the protection of the cultural rights of the members of the new minorities and the need to maintain and protect the incompressible core of the fundamental constitutional principles and rights of the host legal system. This is the result of a commendable and restless hermeneutic activity of the judiciary which, as the legislator remained silent, took on the task of answering the ever-increasing demand for recognition of multicultural claims. In this framework, the limit to the recognition of cultural rights was found in the incompressible core of the fundamental human rights recognised by the Italian Constitution, which cannot be entirely sacrificed in favour of cultural rights. Conversely, the demands for integration, aimed at imposing the majoritarian axiological system on the members of the new minorities, have found their limit in the incompressible core of the right to culture (to keep one’s original culture) and its specifications.

From this perspective, in the Italian legal system the assessment of cultural rights and of the claims for cultural recognition of the new minorities in the absence of a defined legislative model of integration does not seem to have posed an issue but, rather, an opportunity. The jurisprudential recognition of the new minorities on a case-by-case basis, within the limits described above, has effectively facilitated a de-escalation of cultural clashes and Italy has not experienced the same integration problems as, for example, France, the United Kingdom or Germany (Cavaggion, 2018).

However, this framework has radically changed in recent years, as Italy was one of the European countries the most prominently impacted on by the so-called ‘refugee crisis’. From 2015 to 2017, over 300,000 asylum-seekers applied for refugee status in Italy. Immigration was one of the main topics of the 2018 general election campaign and, as a matter of fact, the right-wing populist party ‘Lega’, led by Matteo Salvini, which rode (and fuelled) the growing anxieties that the ‘refugee crisis’ generated in the Italian society, owes a great part of its electoral success to its promise to govern immigration with an iron fist.

The rise of ‘Lega’ is, in turn, symptomatic of a significant shift in Italian public opinion, which is steadily trending towards a widespread anti-immigration sentiment. This is best exemplified by a number of quantitative indicators which reveal how, despite the commendable results of the jurisprudential model of integration, some worrying tendencies and anxieties are gradually developing in the population on the matter of multiculturalism. These trends, starting in 2015, have been undoubtedly exacerbated by the ‘refugee crisis’. For example, in 2016, Italy came second, among European countries, in the unflattering ranking of the negative sentiment towards Muslim minorities. Similarly, in the same year, Italy was leading the ranking of European countries in sharing the belief that refugees commit more crimes than other social groups.¹⁸ Moreover, in 2017, one Italian in four stated that they would not accept a member of the Jewish minority into their family, while one in two said that they would not accept a member of the Muslim minority into their family.¹⁹

From this perspective, it could be argued that even the judiciary was not entirely immune to public opinion’s tendency for populism and the rejection of immigration and integration. Several recent judicial decisions show a drift from the (precarious) balance that was reached in recent decades and embraced more restrictive positions, thus allowing a further judicial compression of the cultural rights of the members of new minorities. This poses a severe risk for the Italian model of integration as a whole, as an assimilationist drift in the jurisprudence of a legal system (such as the Italian one), in which the judiciary historically functioned as a safeguard for the enforcement of the Constitution when it comes to regulating immigration, could ultimately amount to a drift of the integration model as a whole.

The new principles affirmed by these (currently still isolated) new judicial decisions are that the members of the new minorities must meet an ‘obligation for the immigrant to conform its values to those of the Western world, in which they freely choose to enter’²⁰ and to ‘verify in advance the compatibility of their behaviours with the principles’ that regulate the host society and ‘their legality with regard to the host society’s legal system.’²¹

One cannot help but wonder to what extent this judicial drift was influenced by the growing anxieties in Italian society and by the resulting changes in the tones and contents of the political, social and public debate on the issues of immigration and multiculturalism in the most difficult years (at least in the general public’s perception) of the so-called ‘refugee crisis’. The drift is perhaps best exemplified by two actual cases.

5.1 Kirpan

In 2017, the Italian Court of Cassation examined the case of a man belonging to the Sikh minority who was accused of illegally carrying an article with a blade or a point in a public place.²² The ‘article’ was a kirpan, the ceremonial dagger that all Sikhs must wear due to a specific requirement of their religion and which is regarded as a symbol of a Sikh’s willingness to fight and resist evil at every moment (Juss, 2013).²³ In previous instances, other Italian courts found that wearing a kirpan was not a criminal offence, as the practice amounted to a legal manifestation of the right to freedom of religion protected by Article 19 of the Constitution, which could not be compressed in the absence of a real threat to another constitutionally relevant interest.

However, with Decision no. 24084 of 2017,²⁴ the Court of Cassation endorsed a revirement on the matter, declaring that wearing a kirpan in a public place should be regarded as a criminal offence in the Italian legal system, as the practice amounts to illegally carrying an article with a blade or point. The court found that freedom of religion can be limited ‘in order to protect other interests’, such as those ‘that fall under the formula of public order’ (Bernardi, 2017; Ruggeri, 2017).

The motivation behind the decision outlined a set of principles that clearly diverge from those enforced by the Italian judiciary in previous multicultural cases, as the court stated that ‘in a multiethnic society, coexistence between individuals of different ethnicities necessarily requires the identification of a shared core in which immigrants and host society must recognise themselves’. According to the court, this means that there is ‘a fundamental obligation for the immigrant to conform his values to those of the Western world, in which he freely chose to live’ and to ‘preliminarily assess the compatibility of his behaviour’ with the principles that regulate the host society. The court went on to state that

the decision to move into a society in which, as it is known, the founding values are different from those of the society of origin, demands the respect of said values and it is not tolerable that attachment to one’s values, even if based on the laws of the country of origin, results in a deliberate violation of the values of the host society.

The shift in the court’s approach (if compared to the previous jurisprudence of the Italian integration model) seems apparent and even more so if one considers that the court, while elaborating on the content of the alleged ‘core’ that constitutes the non-renounceable principles of the Italian legal system, states that this core is composed of the ‘values of the Western world’. The court failed to take into account the cultural meaning of the kirpan (which is a religious symbol and not a weapon) for the Sikh minority and equated the concept of ‘public order’ with the ethical values embraced by the cultural majority in Italy (Cavaggion, 2019). Moreover, it must be stressed that reference to the ‘values of the Western world’ in the specific case of the kirpan is almost paradoxical. In fact, it is quite difficult to believe that not carrying a weapon in a public space is a ‘value of the Western world’: as a matter of fact, openly carrying a weapon in the public space is regarded as an expression of a constitutional right in at least one of the most prominent Western legal systems, that of the United States of America. It must also be stressed that, contrary to what the court claimed, carrying a kirpan is regarded as a legal practice in the vast majority of Western constitutional systems (Cavaggion, 2017).

5.2 The Face Veil (Again)

Another case involved a 2015 resolution by the local government of the Region of Lombardy which prohibited access to the main regional governmental building to persons with their face covered, once again invoking Law no. 152/1975 as the legal basis for the ban (see supra, Section 9.3.1), while specifying that ‘religious practices or traditions [...] cannot be regarded as a just cause due to the security needs of regional facilities’.²⁵

The case is relevant because, for the first time in Italy, a court chose to depart from the seemingly reasonable principles that the Council of State set out in 2008 regarding the face veil. In fact, the Tribunal of Milan upheld the above-mentioned regional resolution, as it found that the prohibition of the face veil in regional governmental facilities does not amount to a discriminatory measure against women belonging to the Muslim minority. More precisely, the tribunal conceded that the ban, despite being neutral in hypothesis, caused a ‘disadvantage’ for Muslim women in reality but found, nonetheless, that this ‘disadvantage’ is ‘objectively justified by a legitimate aim, which is the necessity to ensure identification and checks for public security reasons’.

However, the tribunal failed to note that what it dismisses as a simple ‘disadvantage’ amounts, in reality, to a severe compression of a number of fundamental constitutional rights, as the facilities included in the ban’s scope include, for example, hospitals, local clinics and local housing agencies, which are all tasked with the implementation of many different fundamental social rights. A woman belonging to the Muslim minority living in Lombardy is, therefore, forced to make a choice between two equally fundamental rights, in a situation in which exercising one of them (freedom of religion) leads to the violation of the other (for example, the right to health or the right to housing) and vice versa. This is even more worrying if one considers that, contrary to what the tribunal stated, the ban appears disproportionate and the supression of the right to culture and freedom of religion for public security reasons is imposed in order to prevent a highly hypothetical and abstract danger. On the one hand, local clinics and housing agencies do not seem to be ‘sensitive targets’ in need of reinforced protection for public security reasons. On the other, the same aim (the protection of public security) could have been reached in a less damaging way, such as the mandatory identification at the entrance of facilities through the removal of the face veil for the time strictly necessary for the purpose.

The court’s decision, although as of now an isolated one, could nonetheless be regarded as expressive of a changing public sentiment, which is further confirmed by the case, reported by several media outlets, of a young Muslim trainee lawyer who was forced to leave an administrative courtroom due to her refusal to remove her veil (which, in fact, did not even cover her face), while the guidelines of the Italian Supreme Council of the judiciary clearly state that

in the exercise of the judge’s power of directing and organising the hearings, those conducts that do not interfere with the orderly celebration of the hearing and that represent a legitimate exercise of freedom of religion must be granted full protection. This includes the wearing of specific clothing or other external symbols.²⁶

6 Conclusions

The issues described above make one wonder whether it would not be appropriate, in the current situation, for the Italian legislator to finally take action, in order to ‘crystallise’ the best results of the multicultural jurisprudence of recent decades. This would also be to protect the reasonable balancing historically set out by the courts from the contingent logics of growing anxieties in a multicultural society and from the drives coming from the more-extreme and intolerant sectors of public opinion which might result in an assimilationist drift in the national model of integration.

From this perspective, scholars argued that taking action with ad hoc policies in order to regulate the issues of multiculturalism and integration in a constitutionally compatible manner has become, now more than ever, a precise and pressing duty of the state (Cerrina Feroni, 2017).

A structural legislation that regulates the issue of the cultural rights of new minorities should also be accompanied by additional proactive policies (Medda-Windischer & Carlà, 2021), in a far-sighted design that should look beyond the balancing performed by the judiciary on a case-by-case basis. These multicultural policies should not recognise cultural rights as a ‘graceful concession’ of the host society to the members of new minorities but, rather, should adjust the legal system in order to allow it to accept and welcome cultural diversity as an added value for society as a whole. A legal system that is not prepared to embrace multiculturalism as a structural factor of our societies (and which treats it as an emergency or contingency) is destined to face two possible alternatives that are equally bound for failure: assimilation or expulsion (Palermo, 2016). However, neither of these alternatives seems to be legally pursuable in the Italian constitutional system, as widespread expulsion and forced assimilation are contrary to the fundamental constitutional principles outlined in the Republican Constitution.

It is certainly true that integration models are shaped by political, social and economic contingencies and, as such, are highly volatile and can change (even drastically) over time and in light of new anxieties. However, from a legislative and jurisprudential perspective, a national ‘model’ can never diverge from the fundamental constitutional principles that found the legal system as a whole. In fact, the requirement of compatibility with fundamental constitutional principles, often invoked as a limit to minoritarian cultural practices and cultural diversity (Cerrina Feroni, 2017), should also be understood as a limit for the legislator and the judiciary, which are bound, in the exercise of their respective powers, by the fundamental principles of pluralism, equality and human dignity which demand that the Italian integration model is, at its core, a multicultural one (Ainis, 1991).