Gender, female genital cutting and human rights: assessing customary norms and conflicting values in a global world

Customary norms and state legal systems often reflect different narratives, which create normative conflicts. Frequently, these conflicts involve gender based issues and are emphasised by global migrations. The study of the French legal system’s treatment of female genital cutting (FGC, excision) confirms this remark. FGC is a very ancient practice that is widespread in several geographical areas, which consists in the ablation, to varying degrees, of female genital organs. Because FGC violates fundamental rights like the right to physical integrity, health, and non-discrimination on the basis of gender/ethnicity/culture, the practice of excision creates a normative conflict between a customary norm and the state legal system. This paper examines the reasons given by immigrants to explain the perpetuation of this traditional practice in migratory contexts, as well as how the French criminal justice system has dealt with the above-mentioned conflict, by transferring FGC cases from the jurisdiction of the Tribunal Correctionnel to the one of the Cour d’Assises. France is the only country where cases of FGC are systematically brought to court. It is also the only country, among the “Western” countries sanctioning this practice, that did not adopt ad hoc provisions to prohibit it. The author conducted an ethnographic inquiry into the French criminal trials related to this practice that analysed the judicial responses, disclosing the narratives of the trials, the influence of their main social actors, and the dialectic between two normative universes, which are conceptually distant with regard to the priority given to the individual and the group.