RICERCA ITALIANA     

Multicultural society, immigration and security: some question of social integration

Università degli Studi di Modena e Reggio Emilia

Abstract

The research project will be articulated in two phases. In the first one the focus will be on two relevant problems for contemporary societies (which is multicultural, characterized by normative pluralism, by the presence of immigrated cultural minorities, the discrimination of vulnerable persons, the legal and constitution capacity to integrate shared values): the relation between constitutionalism and multiculturalism and the phenomenon of rendering migrants criminalized. By mapping the "Critical Race Theory" (CRT) as well as their relevance in the European constitutional field, some topoi like the setting of freedom of speech and the clause of equal protection in multicultural society will be examined. As a typical case, the question of FGM (Female Genital Mutilation) will be used, along with its impact on both American jurisprudence and on the Italian legal and political debate, starting from the Tuscany region-case which aroused following to the proposal of a "ritual Sunnah". Moreover, even on the theoretical level in the proposal of CRT, what has been considered the foremost outcome of output racism will be focused on, i. e. the detention of migrants and their becoming criminalized as a tool of social exclusion.
In the second phase the institutional strategies which have the capacity to pacify the multicultural conflict and to protect rights of single person involved will be examinated. Emphasis will be laid on two different ways (extra-judicial conciliatory negotiation and the judiciary solution) which are complementary and seem promising in order to get the result of a heterogeneous society, characterized by "pacific" conflicts, i.e. conflicts legally regulated. Vulnerable persons - such as women belonging to lato sensu cultural groups, i.e. ethnical, linguistic, religious or sexual-oriented - will be the object of this section of the research with the aim of presenting possible forms of legal protection. These persons, different even in their own group, can be protected not with procedures culminating in a authoritative decision such as those taken by a judge, but with a legal transaction procedure which tries to mediate between the parties to the case - this is the main hypothesis. This paradigm seems to give credit to the hypothesis that a "compromise-solution" - like for example, the protection of personal integrity against the threat of genital mutilation - which protect both traditional customs and women's right, would be the fairest.
Finally, attention will be paid to the problems that this theoretical model - which does not accept the solution offered by the logic of exclusion in order to achieve security goals - poses to the constitutional order: in fact, it is evident that there is a conflict between democracy (understood as the decision by the majority) and the principle of the "rule of law" (protection to the migrants, in particular of their right to an equal treatment compared to the catalogue of rights that the Italian constitution calls "human rights" and not only "citizenship rights"). From this point of view, instead of declaring an abstract formal equality before the law and deciding by principle, the judge's reasoning closest to justice seems to be that of keeping a pragmatic attitude which leads him to interpret and apply norms respecting the culture-factor (culture-sensitive adjudication). That would be possible on the basis of a principle-generalization in the process of lawmaking: the law can be a factor of integration only if the decision is taken in cooperation with the parties to the case, i.e. with compromises and transactions. <<<

Principal Investigator

Gianfrancesco ZANETTI Università degli Studi di MODENA e REGGIO EMILIA

Research Objectives

The research will be carried out in two stages.
In the first stage, the two research units will focus on two significant problems of contemporary societies: the relationship between constitutionalism and multiculturalism, and the criminalisation of migrants. In this context, contemporary societies are understood as multicultural societies where we have phenomena like normative pluralism, immigration, the presence of cultural minorities, discrimination against weak subjects, the crisis of Constitution's and law's capacity to guarantee the social integration based on shared values. The research unit of Modena will cope with the writings of those American scholars who have theorised the so called "Critical Race Theory" by assessing their relevance for the European Constitutional realities. Here the focus will be in particular on the relation between constitutionalism and multiculturalism, by investigating some topoi like the statute of free speech and the principle of equal protection in a multicultural society (Raz 1995; Sunstein 1995). The question of female genital mutilation examining its impact on American constitutional jurisprudence will be considered a paradigmatic case in that respect (Coleman 1996; Heger Boyle 2002). The research unit of Florence will deal with the same topic but here the emphasis will be put on the debate on the "ritual Sunnah" that has developed in Tuscany (a region which provides a free service of ritual circumcision to its inhabitants). This debate has been promoted by the co-ordinator of the research unit of Florence, among others, and has involved a number of institutions such as the Local Ethical Committee of the Asl in Florence, the Regional Ethical Committee and the Regional Council. Moreover, the research unit of Florence will deal with the main expression of the "output racism", meaning the detention of migrants. In this context, the main objective of the research will be that of working out a framework that will enable us to interpret the criminalisation, and the related imprisonment, of migrants as a means of social exclusion of the allegedly dangerous subjects.
In the second stage, we will assess the legal and political strategies set out by the public institutions to cope with the multicultural conflicts in a procedural way and so to make it possible the guarantee of the fundamental rights of the involved individuals. So the two research units will emphasise the role that two different, but complementary, promising approaches to these issues, i.e. the extra-judicial negotiation and the juridicisation, can play in order to enable us to have societies that, although not homogeneous, can be characterised by "peaceful conflicts", meaning conflicts under the law.
In order to perform the research and to share its partial outcomes with other researchers, two web sites will be developed: "L'ALTRO DIRITTO. Documentation Centre on Prison, Marginality and Deviance" (http://dex1.tsd.unifi.it/altrodir/index.htm) and "JURA GENTIUM, Centre for Philosophy of International Law and Global Politics" (http://dex1.tsd.unifi.it/jg/, where a documentation on female genital mutilations is already available), both hosted by the University of Florence, at the Dipartimento di Teoria e Storia del Diritto. The activity of the research units will include, besides the management of the two web sites, closed and open seminars (with the presence of national and international experts), conferences, missions and research stays, scientific publications (in, both, standard and electronic format). An anthology of the "Critical Race Theory" authors, edited by Professor Kendall Thomas (Law Professor at Columbia Law School, New York) and by the submitter of the project and published by Editore Diabasis (Reggio Emilia), is also scheduled. This publication will make available to the Italian readers an interesting, and so far neglected, school of thought. <<<

First Results

In order to find ways of social integration through law-given means, concerning the relation between constitutionalism and multiculturalism, a pragmatical constitutional doctrine has to be thought, able to resolve the multicultural issues regarding vulnerable subjects (as individuals, or ethnic-cultural minorities: CRT) within the frame of the principles of the dignity of persons, of their equal consideration and respect, and of equal protection from legal ordering; which, therefore, may be sensitive to cultural differences in a non-relativistic perspective.
Referring to the phenomenon of the criminalisation of migrants, predicted results will be: the analysis of the connection between high rates of imprisonment and the processes of criminalisation and the validation of the hypothesis that the penitentiary is becoming an instrument of negative social integration, as far as it aims at justifying the exclusion of the members of the disadvantaged underclass (who, in Europe, are often migrants who are led by their irregular situation to commit crimes) from the enjoyment of rights. The penitentiary, while abandoning its traditional rehabilitative function, is becoming, according to this hypothesis, the main instrument of a policy of integration that is not based on the principle of a fair redistribution of resources (social rights) in a society of differences, but that aims, rather, at hiding the differences and at producing an apparent social homogeneity by the expulsion of the migrants from the social and political space.In the second stage the research will evaluate the legal-institutional and political strategies, that can guarantee the proceduralization of the multicultural conflict and an outcome of this conflict able to protect the fundamental rights of the individuals involved in the conflict. In this second stage the research units will focus on two different solutions (out of court conciliatory settlement and judicial settlement of controversies) that are complementary and that could be promising ways to shape a society that is not homogenous, but is featured by "peaceful" conflicts, by conflicts ruled by laws.
Referring to the conflict that has been outlined between the choices maid by the majority of citizens and the protection of the rights of the migrants: the study of the problems connected to the access of the migrants who are in a regular position to the right to vote and to the exercise of this right and the validation of the hypothesis that the judicial conflict is the best mean that migrants today can afford, in order to proceduralize the political conflict. In particular, the analysis of the connections between the strategy of the judicial settlement of the conflict and the policies of social inclusion of minorities. <<<

Timescale

24 months

National and international background

Contemporary western societies are pluralist societies where different cultures and minorities, both native and immigrant, struggle for having their cultural identity "recognised" (Taylor 1993). Each social group is willing to follow its own life patterns and behave in accordance with its own cultural models. This attitude often takes the shape of a claim to "a group's cultural rights". Hence, our societies can be defined as "multicultural societies" (Belvisi 2000; Brena 2002; Facchi 2001; Kymlicka 1999; Raz 1995; Tully 1995).
Traditionally, the problems of social integration are dealt with by affording on the integration force of a Constitution (Heller 1928; Smend 1928). This approach assumes that a society is a homogeneous and consistent body: only if a whole is coherent it makes sense to appeal to the idea of "constitutional patriotism" (Habermas 1992). But nowadays the opposite is true: societies are pluralist and multicultural rather than internally consistent. As a consequence, they are hardly satisfactory the approaches taking it for granted that in contemporary societies we have a common set of values, the fundamental rights, accepted by each and every individual and/or group: if we take the "fact of pluralism" (as Rawls 1994 puts it) seriously, we should abstain from embracing a universalist strategy as the foundation of deliberative democracy (Bohman 1996).
In fact, whenever in connection with fundamental institutions of social life (such as marriage, family, religion, main rituals, food, and funeral ceremony, among others) individual behaviours take a radically different shape several forms of misunderstanding and conflict are likely to occur, especially if these behaviours are associated with institutions that are incompatible (Raz 1995; Zanetti 1998, 2004) with the basic principles of the "dominant culture". Then, it is most likely that the weakest social agents, such as women and children, end up being strongly penalised and discriminated, or so we would perceive it (Okin 1999; Minow 2002; Shachar 2001). This dimension has been emphasised by Susan Okin who has raised the disturbing issue whether multiculturalism harms women (1999). This individualist dimension is only a part of the story, however. The possibility to discriminate against weak agents presents an holistic dimension, too: also minorities can be discriminated and this can cause ethnic conflicts (Cotesta 1999) and even, which is more to the point here, racial clashes. The latter possibility has been carefully investigated by the "Critical Race Theory" from a legal and constitutional point of view (Crenshaw, et al. 1995; Thomas 2003).
These puzzles of integration have a strong impact at the level of "security politics", a concept which is characterized by the idea of an homogeneous state community.
The need for security has epitomized the foundation of the modern state in the perspective of contractualism (Hobbes and Locke). In the age of revolution and during the European 18th century, the question aroused on different levels: 1) On the ideological level, by imagining that the (French) nation or the (German) people as a whole of citizens-property owners (Sieyés, Kant), a single bourgeois class, considered a culturally homogeneous political unit; 2) On the sociological level, by implementing the first welfare politics supporting disadvantaged categories like the working class and the have-nots; 3) On the legal level, through the repressive function of criminal law.
Since the end of World War II, the ideological tool has become unviable for the welfare society has been recognized as non homogeneous and its cultural pluralism simply registered as a "fact" (Rawls). Cultural and social heterogeneity has highlighted the question of social security.
The "welfare model" crisis, i. e. its apparent incapacity of governing an increasingly multifaceted pluralism, have brought about a feeling in a large portion of the population that the loss of cultural and social "homogeneity" is a threat to its own security. In this context, the notion of "race" seems to play a role in the definition of the boundaries of a political community. Hence, this project means to broach the legal impact of the notion of race on the Legal Systems of Modern Western Society. A first assessment of the notion of race has been provided in the monographic issue of the journal "Filosofia Politica" (3/2003). The research will focus on the approach developed in the US by the so-called "Critical Race Theory" Scholars. This interesting array of studies are not known at all in Italy. We expect, first, to shaed some light on the relationship between law and race; second, to look into the different forms of "racism" which --according to some authors-- be detected inside Western Legal Systems.
Race is a plural notion; if there were just one race, there would be no race at all, because it would not be perceived as a race at all. The racial construction of a political "we" is just one of the many possible ways of dealing with a classical problem of political theory. It necessarily involves the construction of a political "you", and acts on a divisive principle of exclusion. It should be borne in mind that any political "we" is but a cultural product, and that from this point of view the notion of race is not different from the notion of nationality or class. The Critical Race Theory authors can help us to understand the specific role played by the notion of race.
We can distinguish "input racism" from "output racism". While "input racism" is obvious in so far as it considers differences-inequalities based on racial differences to be relevant, "output racism" denies relevance to racial differences. In effect, neglecting the race factor is just another way to transform a race-discourse into a racist approach to social and legal questions. As "output racism" does not take into account the unfair starting points, racism may be seen in the outcome that becomes necessarily negative for the vulnerable person or group.
In Italy the most evident manifestation of "output racism" is the rate of migrants' imprisonment. This research project starts from an analysis of the rise of the prison population in the Italian prisons and, in particular, with the observation that the number of migrants among the prisoners is growing steadily. The data about the Italian prison population at January 1, 2003 show that non-nationals are more then one third of the total (in the penitentiaries of the big cities the percentage of non-national prisoners can attain more then 50%). If we examine the entries in prison from freedom the situation doesn't change much: the data of the Italian Ministry of Justice show that, in 2002, 81.185 persons entered in prison, among them 47.522 men and 3.513 women were Italian citizens, and 27.250 men and 2.900 women were non-nationals. The percentage of non-nationals was then 37% of the total entries.
This phenomenon isn't characteristic of the Italian situation. The same tendencies can be noticed in the main European countries. The sociological literature has in the last years interpreted this process in different manners. In particular, Zygmunt Bauman and Loïc Wacquant showed the connections between the incarceration of migrants in Europe, and of African-Americans in the United States, and the general transformation of the policies aimed at governing marginality. These policies have been redefined as security policies. According to Bauman and Wacquant, the North-western countries have made a choice in favour of the penal treatment of misery, because of the weakening of their ability to intervene in the social arena and because of the loss of many prerogatives of their political sovereignty. The more the economic and social policies of the national governments are inspired from neo-liberal theories, promoting the "privatization" of social relationships, and the more the guarantees of the welfare state are weakened, the stronger would the process that leads to the penal treatment of poverty be.
This analysis can be considered as a good point of reference, but it seems too vague, especially referring to the European situation, which is characterized by the over-representation of migrants among prisoners. The research units consider that, in order to understand the phenomenon of the incarceration of migrants, it is necessary to build a theory that takes into account many factors that Bauman's and Wacquant's views (which we consider as representatives of an important stream of European sociology) tend to underestimate. Italian sociologists have tried to provide a more specific analysis about the big percentage of non-nationals, mostly irregulars, who are hold in our prisons. The main interpretations seem to be two: the first, of which Marzio Barbagli's position (1998) can be considered representative, holds that the data referring to the incarceration of migrants in Italy simply give a picture of the great percentage of migrants involved in criminal activities; the second, exemplified by Alessandro Dal Lago's view (1999), holds that the great quantity of non-national prisoners in our penitentiaries must be interpreted as a datum socially constructed by the common action of informal social control and of formal social control carried out by institutional agencies.
Both these interpretations, which are largely opposed, can be taken as a starting point for a critical study. On the one hand, the involvement of specific groups of non-nationals in criminal and deviant activities is so evident that no ideology inspired by the ideal of solidarity could allow to deny it, but, on the other hand, the fact that the datum of non-nationals' detention is socially constructed seems evident too. This doesn't mean that the detention of migrants is the consequence of an explicitly racist or xenophobic ideology or that it is the result of a plot hatched against the migrants, but it means that the large number of non-national prisoners in our penitentiaries depends on a specific worldview which is widely shared in European societies and on the social relationships that are shaped by it. The traffic of illicit drugs and the market of prostitution, together with the different markets of the so-called "informal economy" (which, according to recent statistics, represent almost one third of the Italian economy), are irresistible pull-factors of migration.
In a situation where the lack of legal employment drives the migrant labour-force to the informal labour-market or to the illegal markets, which are normally more profitable, the connection between being a "foreigner" and being "deviant" becomes a self-fulfilling prophecy. This vicious circle is the sign of a form of exclusion that has deep social roots. The strength of this construction is highlighted by the fact that the labelling isn't carried out by a social elite: it generates instead wide consensus among the public opinion, which tends to consider immigrants as the cause of negative phenomena, such as drug pushing and prostitution. The fact that the presence of immigrants is the result of the pull-factors generated by the pre-existent illegal and informal markets remains unknown.
Taking the constitutive pluralism of multicultural societies seriously and treating it as a starting point of any adequate normative philosophy does not mean giving up with the integration force of the Constitution, however. It rather entails a switch in the perspective from which social integration should be analysed. On this view, we should not understand a Constitution as a "integration's order" (Integrationsgebot: Katzenberger 2001) and so claim that societies can find their principle of social integration in a core of values universally shared. By contrast, we should assume that contemporary societies have a conflictive nature and interpret the fundamental rights as "operative principles" (Galston 2000; Parekh 2000), that is, suitable tools to settle social conflicts (Belvisi 2003). The outcome then is an inclusive model, not a unifying one. This model is grounded on the idea of "mild" Constitution (Zagrebelsky 1992) and the Constitution is ultimately understood as a "integration's offer" (Integrationsangebot: Katzenberger 2001). The conceptual connections between this idea and the pluralist nature of a multicultural society are obvious. First, here in order to cope with the issue of social integration we appeal not only to the principle of equal treatment and protection set out in art. 3 sec. 1 Italian Constitution and in Amendment XIV USA Constitution but also to the notion of "tolerance". Because tolerance is a constitutive principle of a multicultural society (Walzer 1998) we end up with a highly coherent picture. Second, this approach takes into account another essential trait of our societies: the existence of conflicts. Intuitively, the notions of pluralism, tolerance and conflict are strictly interrelated.
This side of the problem conduces to clarify what is the institutional order of the political system - an order democratic and constitutional in different ways - which has to govern a multicultural society. Generally, it is hold that democracy is essential to it: only in a democratic State cultural minorities can not only live in accordance with the principles of their own culture without running the risk to be exposed to dangers of some forms but also have the right to do so (Kymlicka 1999). It is proved that for having a pacific multicultural society is necessary to pacify conflicts by adopting a procedure-oriented method: conflicts have to be pacified not with violence and force, but only by legal or judiciary means. A multicultural society should be seen as a potentially conflictive but an actually peaceful society: in fact there conflicts are settled in legal ways (by recurring to legal proceeding, for example) rather than in violent ways. Therefore, it is urgent for contemporary legal theory to work out a conception of Constitution and law coherent with the pluralism inherent in our societies (Brugger 1998, 1999; Denninger 1998; Dworkin 1996, 2000; Frankenberg 1996; Shachar 2001; Tully 1995), and, as Ayelet Shachar (2001) argues, a method to settle cultural controversies more negotiation-oriented than traditional legal proceedings ending up with an judicial decision. Moreover, it is necessary to study whether the judiciary option - an alternative that despite its being an authoritative solution is still a decision on a single case based on peculiar characteristics and it is always reviewable in similar cases - can represent a better way for applying procedure to a conflict than a decision by the majority (Santoro 2001-02). <<<