Claiming cultural diversity in courts. Exploring judicial strategies to elude the “cultural question” in Italy and the UK

La rivendicazione della diversità culturale nelle corti. Analisi delle strategie giudiziarie volte a eludere la "questione culturale" in Italia e nel Regno Unito

Abstract

How do judges manage cases of cultural diversity? What are the outcomes of their judgments and what arguments are posited to justify them? Is there any recurrence among the main arguments used by judges in different legal systems? In order to answer these questions, the article draws on the results of socio-legal research aimed at identifying and analysing judicial reasoning (and decisions) in cases from 1993 to 2013 where “cultural arguments” were pleaded by the offender or raised by the judge, in Italian and English courtrooms. The article discusses the outputs of the empirical research, highlighting the differences in the approach towards diversity management in the Italian and English courtrooms. Italian judges reveal a limited awareness of the complexity of cultural diversity, while English judges show uneasiness and disorientation in managing the “cultural factor”. The different approaches notwithstanding, results point to an interesting convergence: in the absence of policies and tools for managing cultural diversity in the courtroom, Italian and English judges try avoid directly addressing the “cultural question”.

Keywords: Judicial reasoning; Cultural diversity; Cultural defence; Socio-legal research; Judicial stereotyping.