Customary norms and state legal systems often reflect different narratives, which create normative conflicts. Some traditional practices that were ignored when only perpetuated in colonised areas, were considered crimes once “imported” in European and, more generally, “Western” countries. These crimes transpose “in the realm of criminal law a situation of legal pluralism” (Foblets, 1998). 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, mainly Africa, 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 main 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. France is the country with the most extensive jurisprudence on the matter. It 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 (through an act or an article in the Penal Code) to prohibit it. In France, the practice of excision was strongly debated after a few little girls died from the haemorrhaging caused by FGC. These behaviours were also strongly debated when they were no longer qualified as délit but as crime, with their consequent transfer from the jurisdiction of the Tribunal Correctionnel to the one of the Cour d’Assises. This paper’s theoretical framework is shaped by legal anthropology’s contributions to the study of custom and customary law in traditional societies, in particular by Africanist perspectives. The paper discusses the premises of the French normative response to FGC, including the French model of immigrants’ social inclusion (modèle français/républicain d’intégration). 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. This empirical research has been carried out through a qualitative content analysis of documents and in-depth interviews with some of the main social actors (judges, lawyers, doctors, anthropologists, interpreters, etc.) involved in the trials. To re-construct the cases and the trials, the author considered it necessary to derive from different sources, combining written sources, including legal (rulings) and non-legal sources (newspapers, periodicals, academic journals, and gray literature), with oral accounts.

Customary norms vs State Law : French Courts’ responses to the traditional practice of excision / L. Bellucci. ((Intervento presentato al convegno Centaur Jurisprudence Conference: The Legalization of Culture and the Enculturation of Law tenutosi a Montréal nel 2014.

Customary norms vs State Law : French Courts’ responses to the traditional practice of excision

L. Bellucci
Primo
2014

Abstract

Customary norms and state legal systems often reflect different narratives, which create normative conflicts. Some traditional practices that were ignored when only perpetuated in colonised areas, were considered crimes once “imported” in European and, more generally, “Western” countries. These crimes transpose “in the realm of criminal law a situation of legal pluralism” (Foblets, 1998). 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, mainly Africa, 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 main 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. France is the country with the most extensive jurisprudence on the matter. It 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 (through an act or an article in the Penal Code) to prohibit it. In France, the practice of excision was strongly debated after a few little girls died from the haemorrhaging caused by FGC. These behaviours were also strongly debated when they were no longer qualified as délit but as crime, with their consequent transfer from the jurisdiction of the Tribunal Correctionnel to the one of the Cour d’Assises. This paper’s theoretical framework is shaped by legal anthropology’s contributions to the study of custom and customary law in traditional societies, in particular by Africanist perspectives. The paper discusses the premises of the French normative response to FGC, including the French model of immigrants’ social inclusion (modèle français/républicain d’intégration). 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. This empirical research has been carried out through a qualitative content analysis of documents and in-depth interviews with some of the main social actors (judges, lawyers, doctors, anthropologists, interpreters, etc.) involved in the trials. To re-construct the cases and the trials, the author considered it necessary to derive from different sources, combining written sources, including legal (rulings) and non-legal sources (newspapers, periodicals, academic journals, and gray literature), with oral accounts.
21-feb-2014
Settore IUS/20 - Filosofia del Diritto
Customary norms vs State Law : French Courts’ responses to the traditional practice of excision / L. Bellucci. ((Intervento presentato al convegno Centaur Jurisprudence Conference: The Legalization of Culture and the Enculturation of Law tenutosi a Montréal nel 2014.
Conference Object
File in questo prodotto:
Non ci sono file associati a questo prodotto.
Pubblicazioni consigliate

I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.

Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/2434/407357
Citazioni
  • ???jsp.display-item.citation.pmc??? ND
  • Scopus ND
  • ???jsp.display-item.citation.isi??? ND
social impact