Università Roma Tre

COURSE PROGRAM

Intercultural law is a methodology for the analysis and practical management of relations between legal systems and cultural and/or religious diversity. The need to develop and disseminate this methodology is a consequence of the progressive increase on the social scene of three factors:
(a) the increasing mobility of individuals on a transnational scale;
(b) the rapid processes of modification and pluralization of the ethno-cultural social composition of nation-states or regional politico-legal areas;
(c) the deterritorialization of intersubjective relations that give rhythm to legal experience, and the progressive non-coincidence or diffraction between the space in which the legal actions of individuals or groups unfold and the territorial scope proper to individual state systems.

The intercultural approach to law and cultural/religious differences differs, both in theoretical and practical terms, from private international law and comparative law in that it focuses on translating cognitive and behavioral habits into legal terms rather than primarily into legal rules. Its methodological and operational axes are based on three main assumptions:
(x) people are not norms
(y) cultures are not repertoires of customs but rather cognitive apparatuses;
(z) religions cannot be reduced to "religious denominations" and their relationship to law, and particularly to the law of democratic and secularized countries, must be analyzed with reference to the anthropological content of the categories underlying legal experience.
The legal-intercultural methodology that will be illustrated during the course focuses on the translation into legal terms of conduct engaged in by subjects belonging to cultures other than the Western one, or to religions outside the cultural-anthropological area of Christianity. This translational task, in turn, is aimed at determining the meaning of such conduct with a specific view to its proper legal qualification. The urgency of developing and acquiring the ability to handle cultural and religious difference in this way is closely related to democratic coexistence among people with different cognitive and value models and the need to set up everyday intersubjective relations in ways that are effectively in accordance with the law. These goals are also functional in removing socio-communicative obstacles that may in fact limit the freedom and equality of subjects of law and thus compromise their enjoyment of the prerogatives established by the positive legal system itself.
The course program will first address the analysis of the relationship between law, culture and religion in so-called secular legal systems. It will be articulated in practical terms through the examination of the main institutes of civil and criminal legal experience in order to grasp and underscore the incidence of cognitive-cultural and religious patterns in the semantics of individuals' conduct with respect to the application of positive law to concrete cases. Thus, for example, socio-legal practice will be considered in relation to the problems that may arise both for individuals and for the professionals assisting them, or for the judges who must judge their conduct, as an implication of the cultural and religious diversity of the parties involved, with reference to:
1. the conclusion of a contract (with people of different culture or religion), and so also
2. the management of labor relations;
3. and again, to the understanding and sanctioning of criminal conduct;
4. to business activities;
5. the arrangement of administrative practices;
6. the legal framework related to family, marriage and the regulation of the education of children;
7. the legal regulation of inheritance.

A further section of the course will concern the relationship between the secularization of law and religious traditions. The subject-matter of the lectures will be, in this regard, a detailed critical analysis of secularization in the field of law. The issue takes place in an entirely practical context. It can be effectively summarized in some sample questions. Is it possible to imagine a contract negotiation, for example, between a person of Italian culture and a person of Chinese culture disregarding their respective cultural and religious patterns? As well as come to the contract conclusion while ignoring the relationship between their actions and, respectively, the Christian and Confucian ethical-moral traditions? And this, especially, when considering the extraordinary anthropological impact of these traditions on the cognitive and behavioral patterns of both parties? Think about—as just one example—evaluative standards such as good faith and fairness, but also institutions such as contractual error, the lawfulness/unlawfulness of the cause in relation to the expectations of the parties, and the value/meaning each attributes to the object of the contract and its components. And again, is it possible to adequately interpret a will (especially a holographic one) drafted by a person of a culture that is different from that of the legal interpreter without knowing the anthropological and, specifically, cognitive-ethical patterns underlying their models concerning the intergenerational transmission of assets? Is it possible to qualify in terms of criminal relevance the conduct of a person of a different religion without understanding the relationship extant between that conduct and the meaning s/he attaches to single gestures on the basis of religiously derived anthropological patterns? And, more specifically, is it legally justifiable to disregard the difference in cognitive patterns of cultural and/or religious sources when distinguishing between ‘ignorantia facti’ and ‘ignorantia legis’, crushing the first over the second one—and, what is worse, consider the former ‘excusat’ and the latter ‘non’?
The list of issues raised requires a reconstructive analysis. It includes a cultural-historical and anthropological investigation. As such, it must address the broad resilience of cognitive and axiological patterns that derive from Christian theological-moral doctrines and that connote the legal lexicon of secularized Western legal systems. To this end, the course will examine the historical-conceptual influence of canon law and Christian moral theology in the formation of many current institutions of Western secular civil and criminal law. An influence that results in the presence in the legal lexicon of many Western legal systems--such as Italy's--of a pervasive legal theology. All of this raises the tremendously difficult and pressing question of whether this religious-cultural feature of many national legal lexicons can be combined with the demands (and promises) of universality and rationality inherent in Western secular legal modernity.
In its final part, the course will illustrate the technique of intercultural and interreligious legal translation as a solution in line with constitutional principles and human rights, and directed at overcoming the implicit, but no less pervasive, inequalities and discriminations arising from the cultural incompleteness of modern processes of secularization and, therefore, the universalization of legal experience.
Overall, the course aims to equip the law student, i.e., the jurist of tomorrow, with the interpretive and implementation tools that are indispensable for managing their activities in social circuits that are increasingly marked by, in sequence, the impact of globalization, the transnational mobility of individuals and, therefore, the demands of coexistence among people of different cultures and religions.

The suggested texts are divided into three blocks, denoted by numbers 1, 2, and 3, respectively.

1) M. Ricca (2008), Oltre Babele. Codici per una democrazia interculturale. Daedalo: Bari.

Or alternatively,

M. Ricca (2013), Culture interdette. Modernità, migrazioni, diritto interculturale. Bollati Boringhieri: Torino.


2. M. Ricca (2023) Traduzione interculturale, free download at link:
https://www.researchgate.net/publication/377852796_Traduzione_interculturale

3) Recommended optional readings:

Geraldina Boni, Andrea Zanotti (2024), Matrimonio e famiglia tra diritti religiosi e laici. Zanichelli: Bologna.

Additional texts, also in relation to the learning objectives proposed by students, may be indicated by the professor during the lectures.