The elephant in the courtroom : a socio-legal study on how judges manage cultural diversity in criminal law cases in Italy and the UK

Abstract

How do judges manage cases in which offenders belonging to a minority group invoke their cultural background to obtain special legal treatment? What are the outcomes of their judgments and what arguments posited to justify them? This paper attempts to answer these questions, by drawing 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 (i.e. as a motive, justification, excuse, or mitigating or aggravating circumstance), in Italian and English courtrooms. The research reveals a different approach towards diversity management in the Italian and English courtrooms. Embracing strategies of “cultural reductionism” and “cultural denial”, respectively, Italian judges reveal a limited awareness of the complex issues surrounding cultural diversity, while English judges show uneasiness and disorientation in managing the “cultural factor”. The different approaches notwithstanding, results point 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”.