The “Cultural Test” as Cultural Expertise: Evolution of a Legal–Anthropological Tool for Judges

Abstract

This paper analyzes the state of cultural expertise in Italy and then focuses on how it can be improved through a kind of cultural expertise that Italian academics, judges, and lawyers are currently debating: the so-called “cultural test”. This is a legal test for dealing with culture, which originally emerged as judicial tool in Northern American courts: It consists of a set of pre-established questions that a judge has to answer in order to decide whether or not to accept a cultural claim made by a migrant or by a person that belongs to minority communities. Whereas some questions of the cultural test refer to typical legal balancing between rights, other questions incorporate anthropological knowledge within the trial, requiring the judge to analyze the cultural practice at issue, its historical origin, the importance it has within the community, and other information about which the judge would not be sufficiently knowledgeable without resorting to anthropology. In this sense, the “cultural test” is a form of standardized cultural expertise that helps both the judge and the cultural expert in their tasks. The paper reveals both the arguments against and those in favor of the adoption of the “cultural test” and how they are currently unfolding in the Italian debate.