Culture and the Judiciary

The Anthropologist Judge

Ilenia Ruggiu

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429782091
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

How can jurists resolve multicultural conflicts? Which kind of questions should judges ask when culture enters the horizon of the law? Are they then called to become anthropologists? Through the analysis of hundreds of cases produced through decades of multicultural jurisprudence, this book reconstructs the constitutional and anthropological narratives and the legal techniques used by Western judges to face the challenges posed by multiculturalism: from Japanese parent–child suicide to the burqa, from Jewish circumcision to Roma begging, from kissing a son on his genitals to the claim of indigenous people to fish salmon in natural parks, the book brings the reader into a fascinating journey at the crux of the encounter between the relativism of anthropology and the endeavor toward a democratic coexistence pursued by the law. After identifying the recurrent themes or topoi used by judges and lawyers, this book critically analyzes them, evaluates their persuasive power and suggests a "cultural test" that gathers together the crucial questions to be answered when resolving a multicultural dispute. The "cultural test" is a matrix that guides the judge, lawyers and legislatures across the intricate paths of multiculturalism, to assure a relational dialogue between the law and anthropology.

Part I

Descriptive analysis

The use of culture by judges

1 In medias res

The cases

1 Parents who kill their children

1.1 The Kimura case: Oyaku Shinju – Japanese infanticide between culture and madness

On a morning in January 1985 a woman walked along the beach in Santa Monica, California, holding her newborn daughter in her arms and her four year-old son by the hand. Then turning decisively toward the sea, she plunged into the cold surf. She came to drown. She brought her children.

A group of students from the shore saw the three submerged under the water and came to the rescue. They saved the life of the mother – but arrived too late for the two young children.

Before the Superior Court of California, Fumiko Kimura – the name of the woman the students pulled from the ocean – was charged with second-degree murder, the most serious charge available under the facts, for which state law permitted a sentence of death.

What drove this woman into the waves?

One Chorus – the prosecution – blames a spirit of vendetta against a cheating husband. When Kimura learned of her husband’s infidelity, she became filled with anger. As Medea faced with Jason’s betrayal, she tried to avenge her dishonor by killing both herself and their children: an extreme act of revenge towards her husband, to wipe every trace of his generation. Fumiko Kimura wanted to reaffirm, with this gesture, her most primal conjugal rights (Bryant 1990).

The government’s briefings filed with the court urged the application of the severest penalty available: the woman, they argued, let her passion drive her to destroy two innocent lives.

Not so, objects a second Chorus. The woman loved her children too much to entangle them in such a vendetta. So then insanity was her motive – they suppose. Perhaps Fumiko Kimura is crazy. As the sixth child of a troubled home, driven by a failed musical dream in Japan to seek her fortune in California, weighed by another marriage of eight years which also failed, isolated in her house in a country in which she never learned the language, with neither a job nor any life outside of family, the news that Itsuroku Kimura, her second husband with whom she was married for six years and with whom she believed she had rebuilt her damaged domestic life, had thrice cheated on her may have triggered a latent psychic weakness which had smoldered for some time. Fumiko Kimura, they speculated, became incapable of sound mind while she dove, with their children, into the ocean waves.

Perhaps, the lawyers speculated, Kimura suffered from a temporary insanity.

Not so, whispers a third Chorus. Perhaps it was neither madness nor vendetta which motivated Kimura. Do not limit your point of view to what you can see. Kimura came from Japan, not Greece, not from America. She is no contemporary Medea; she is not insane. The woman produced in this gesture the only reasonable solution to her domestic doom – an act under a cultural impulse. She was practicing, consciously, the Oyaku Shinju, an ancient practice that is still echoed in contemporary Japan. In the presence of a betrayal, Japanese women have traditionally suffered a strong social humiliation to make the gesture of suicide an inevitable outcome. Perhaps it is culture, then, that pushed Kimura and her children into the sea.

Such became the argument of the Japanese community in California, submitted in a petition of twenty-five thousand signatures, asking the judge to take cultural factors into account and explaining that Kimura deeply loved her children (McCaslin 1985a).

“But why the children?” asked the broader public (Woo 1989). What terrible culture is this, which hounds mothers to kill innocent children? Even in Japan the practice is now illegal, although punished leniently by the criminal justice system (typically through reduced charges such as manslaughter which implies a maximum of five years in prison) and the act receives full sympathy at all Japanese social strata. Yet, Fumiko Kimura had lived in the US for fourteen years when she committed the act. For these reasons, thought many Californians, the culpability of Kimura’s actions was clear. She should have been able to “see” other ways to solve her drama.

Not quite, a fourth Chorus interjects. To concentrate too myopically on this ancient ritual, the Oyaku Shinju, can risk missing elements of the broader Japanese cultural system which still persist. What drove the woman is not so much ancestral custom, but non-Western ideas of maternity, child care, ideas about the value of life, and about the way to suicide that shaped her way of seeing the world. Cultures are not mere sums of single practices, but rather “whole systems” (Tylor 1871). To understand the individual cultural behavior, we must go to the wider cultural system. The decision to kill herself was Fumiko Kimura’s, perhaps spurred by her failed life or by the news of her husband’s betrayal; but once she made it, her culture would not permit her to leave her children in this world. They are not perceived as separate subjects: “Japanese mothers kill their children when committing suicide because they do not consider it murder. They would be surprised to be accused of murder and would respond to the accusation: ‘how can killing myself and a part of myself be murder?’” (Kawanishi 1990: 32¹). For these reasons, “Japanese society in general very rarely accuses a mother of infanticide” (Yoshitomo Takahashi, Douglas Berger 1996: 248). As in the West a pregnant mother who attempts suicide and survives is not accused of attempted murder of her fetus, an equivalent logic should apply to Kimura.

While there is, therefore, a symbiotic relational concept in Japanese parenting, it would be unthinkable for Kimura to entrust her living children to the care of others (perhaps even her husband’s new lover) because children without their mothers are destined for misery. To bring her children with her, pleads this Chorus, is an act of love.

The judge calls a cultural expert to explore the socio-cultural background of Fumiko Kimura. He explained how in Japan orphanages are very rare and that no mother would entrust their children to a substitute. Such a gesture would be seen as irresponsible. Paradoxically, explains the cultural expert, the Oyaku Shinju is still common in Japan not as a ritual response to social humiliation (betrayal), but as a result of the strong bond between mother and child, a visceral bond that does not end with the fetus stage of development because the woman perceives the offspring as one with herself for a prolonged period of childhood. In this perspective, according to Japanese logic, a loving mother would not be able to even think about leaving a child in the world to survive alone.

The expert adds that suicide, in the Japanese cultural system, is not seen as a traumatic choice, as in the West where it is almost pathologized; a resort to suicide is not only an extreme solution to an unsolvable problem, but also a path to rescue honor, to express repentance or express love for another.² Suicide, in essence, requires a lower motivational impulse because it is one of many ways to solve a crisis and is considered an honorable way to die. It is no coincidence, then, that at the news of the death of his children, Kimura’s husband Itsuroku threatened suicide; nor that Kazue Tanahashi, the rival lover whose relationship prompted Fumiko’s decision, sent a letter offering to kill herself as well if it would ease the pain of the family.

From concepts of motherhood to those on suicide, wide high-level differences between individualism and interdependence emerge between the two divergent cultures. This explains why the Japanese society conveys a lenient understanding toward those who choose Oyaku Shinju and how even the transformation of the practice into a crime in Japan (evidence indeed of profound internal cultural change) still harbors its practitioners with the reduced charge of involuntary manslaughter. It is this complexity of factors in which was forged Kimura’s identity, in which her gesture becomes understandable, reasonable and even compassionate, according to the Japanese mentality.

Whatever her reasons, Kimura sought death. She reported after being discharged from the hospital: “I wanted to be with my children” (Dolan 1985).³

This tragedy’s Choruses dissonantly diverge. No clear values guide the judge. The horizon of law is torn by new voices, appealing to new anthropological knowledge: that all do not become human beings in the same way, but are all “situated” individuals, actors driven by cultural inputs, with even the human unconscious differing greatly depending on the culture in which it is socialized. Would we, too, have acted as Kimura did if we had been raised in Japan? In addition, the cultural expert’s “translation” of the woman’s gesture further disrupts the Western sense of justice by presenting it as an act of care.

Thus does doubt insinuate.

To condemn Kimura would significantly obscure what has already been stated: the woman could not have acted otherwise, seeing no other viable solution but a gesture which is not only reasonable in her culture, but which even signifies an act of love. And the Japanese community concurred in her judgment.

Yet to absolve the woman would be to ignore the fact that two lives have been snuffed out. Would this not disrupt the values of coexistence, by refusing to protect one of the most important of all legal interests – that of life itself?

Where is the just solution? How is the court supposed to find it?

There is no deus ex machina to unravel the knot. The judge, in this story, is compelled by the petition from Japanese public opinion to don the role of an anthropologist, so much so that he decides to hear from a cultural expert on Japan. Kimura’s attorney, however, abandons the path of the cultural defense,⁴ because admitting that she wanted to kill her children for love would be equivalent to a full assumption of responsibility, a premeditated murder that exposes his client to the death penalty. The insanity defense appeared to be a preferable trial strategy.

The case is resolved according to the theses of the defense. Fumiko Kimura was found incapable of sound mind at the time of the act: madness, agreed the parties, not culture, pushed her with her children into the ocean waves. After her attorney reaches an agreement with the prosecution, she pleads no contest to two counts of voluntary manslaughter and is sentenced to time served and five years of probation, with mandatory psychological support.⁵

1.2 The Saleem case: “honor killings” between culture, individual responsibility and patriarchy

In the summer of 2006, in Sarezzo, a village near Brescia, Italy, Mohammed Saleem called his twenty-year old daughter, Hina, home and, with the help of a cousin, killed her with a knife. A few days later he claimed: “It was me, alone. I did it in a moment of anger. I did not want her to become like the girls here. I asked her to change her life, but she would not.” A chorus of critical voices immediately rose within the Italian press and public opinion, accusing Saleem of acting under a cultural impulse. Since he is from Pakistan, these voices claimed, Hina’s death must be an honor killing, premeditated within the family clan in order to restore its offended dignity. She had gone to live with an Italian man and refused to marry her cousin, to whom she was betrothed in Pakistan. The meeting of the men of the family to decide her death, mere days before the crime and the declaration of Hina’s mother who told the press: “My daughter was not a good Muslim: Mohammed has rendered justice.”⁶ all seemed to confirm this logic.

The first Chorus of this tragedy maintained it was his culture that moved Saleem’s hands, a culture that must be forcefully rejected to affirm the fundamental rights, of which life is the first. While the Pakistani community living in Italy declared that the conduct of Mohammed Saleem was disproportionate and that an average Pakistani father would not have killed his daughter for this kind of conduct, the lawyers who defended the man, using data of honor killings in Pakistan and explaining the importance of honor in that culture, decided to present the case as one of “culturally motived crime” and therefore requested the application of mitigating circumstances, which would reduce the applicable sentence to eighteen years. They claim that, according to Mohammed Saleem’s culture, the rescue of honor could be considered a “motive of particular high moral or social value” recognized as extenuating circumstance by the Italian criminal code (Art. 62 no. 1). Saleem’s lawyers invited the judge to adopt this cultural logic.

But a second Chorus also raises its voice. Feminist critiques vigorously dispute the defense’s characterization of the Hina case, observing how violence against women, which manifests itself as femicide (Caputi, Russell 1992)⁷ and pervades in both domestic and public spaces, is not just a matter of individual responsibility nor a fact limited to traditional cultures but rather a universally widespread practice, better read under the category of patriarchy or gender oppression (Phillips 2005; Reddy 2008).

The judge heeds this Chorus. Urged...

Table of contents

• Cover Page
• Half Title
• Series Page
• Title Page
• Copyright Page
• Disclaimer
• Dedication
• Table of Contents
• Acknowledgments
• Translator Notes
• Preface
• Introduction
• Part I Descriptive Analysis: The Use of Culture By Judges
• Part II Deconstructive Analysis: A Critical Reading of Culture
• Part III Prescriptive Analysis: a Proposal of a Cultural Test
• Conclusions
• Appendices
• References
• Index