Culture and the Judiciary : The Anthropologist Judge (Paperback)

Introduction Part I: Descriptive Analysis: The use of culture by judges Chapter1: In medias res: the cases 1. Parents who kill their children 2. Men who abuse women 3. Concepts of child care 4. Culture and indigenous peoples Chapter 2: The resolution of multicultural conflicts in Western comparative jurisprudence. In search of a common tradition and reliable legal techniques 1. Topica: in search of recurring themes (topoi) in Western judicial reasoning 2. The distinction between culture and religion in constitutional law: the topos of God 3. The emergence of cultural and religious tests 4. The cultural test of the United Nations Human Rights Committee: the topos of graduation 5. Canadian jurisprudence 6. US jurisprudence 7. English jurisprudence: the topos of time 8. Italian jurisprudence 9. German jurisprudence: the topoi of harm and consent 10. The jurisprudence of the European Court of Human Rights: the topoi of diversity as a public value and of the impact on the majority 11. From culture to gender. The topos of female equality 12. Toward a common Western legal tradition on the resolution of multicultural conflicts? Part II: Deconstructive Analysis: A critical reading of culture Chapter 3: Concepts of culture in anthropology and judicial reasoning 1. Deconstructive analysis of the concept of culture 2. Culture as artifact. Reifications, synecdoches, metonymies in judicial reasoning: the veil and the crucifix 3. Culture as the evolution of civilization. Primitivism and the judge faced with the "time factor" 4. Culture as exoticism. The irresistible charm of the "different" on the judge 5. Culture as relativism. The abandonment of reasoning in modus iuridicus in favor of modus anthropologicus 6. Culture as an attribute that only the other has. The "culturalization" of foreigners 7. Culture as interpretation and translation. The search for the "cultural equivalent" in the host culture 8. Culture as authenticity. The judge in search of "pure" cultures 9. Culture as creolization. Judicial recognition of cultural transformations 10. Panculturalism. "Blaming culture for bad behavior" in judicial reasoning 11. Culture as ethnosphere. Cultural diversity as a value for the whole society 12. Turning away from culture in anthropology. The crisis of multiculturalism in the law 13. Culture as patriarchy: the feminist objection to culture. The shifting from "culturally motivated crimes" to "gender crimes" in the law 14. Relevance of the concept of culture and endorsement of a new relation between law and anthropology Part III: Prescriptive Analysis: A proposal of a cultural test Chapter 4: A test as contribution to the resolution of multicultural conflicts 1. Cultural tests in scholarship 2. An overview of the structure of the proposed test 3. Topoi not included: antiquity of the practice, distinctiveness, time of residence 4. The premise of the test: to take the other's perspective 5. The test 6. How to use the test 7. The role of cultural expertise within the test 8. The test's risks: technicality, formalism, bureaucratization, reductionism of reality 9. How to introduce the test into the legal systems 10. Applying the test to concrete conflicts 11. Re-reading the Kimura case Conclusions Appendices