Culture as a Normative Process_di Donato_aime_27.4.14

Do not quote without the Author’s permission

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CULTURE AS A NORMATIVE PROCESS

THE MEANING MAKING OF THE LAW: VOICES FROM THE BOTTOM.

Flora DI DONATO1

QUESTIONS

Culture in Law: Explicit and Implicit Dimensions.

At this stage of my research, I am interested in understanding how local legal practices, on

the one hand, and the backgrounds of the legal actors (laypeople), on the other, may shape the

origin and solution of a case2. In sharing Cotterell’s claims that the influence of “law in culture” has

not been sufficiently analysed by legal theorists, I propose to identify some of the possible reasons

for this weakness of analysis by legal theorists.

1. A first reason may be found into the dominium of the “positive law”, as exclusive

source of legality, during the XXs. As it is well-known, the formalistic and legalistic

tradition in adopting “a law-first” paradigm to analyse legal phenomena, did not take

(seriously) into account the contextual and human factors of influence into the law3.

2. A second reason, related to the first, is of a methodological order: legal theorists tend

to use categories that are internal to the legal discourse, not extensible to the analysis

of the relationship between law & society, law & culture, etc.

3. A third reason may be linked to the difficulty of “capturing” culture in the law because

of the vagueness of such a notion.

Thus, I agree with Cotterell and others4, that the first things to do in sketching the “law and

culture” binomial is to define the meaning of the term “culture” for a cultural oriented analysis of

the law.

As it is well-known, there are over 160 definitions of this term in literature5. I propose

starting from a very classical one coming from anthropology. In a Geertzian sense, culture can be

1 SNSF researcher at the University of Neuchâtel. Habilitation as professor of philosophy of law (Italy) 2 For the locally construction of knowledge through culturally embedded practices and through diverse techniques of investigation and representation, see Geertz (1983). For the plea for a contextual approach of law and culture, see Di Donato & Smorti (2013). 3 According to Silbey (2005), law and society were treated as if they were two empirically and conceptually distinct

spheres. 4 See Mezey (2001). 5 I refer to the classical research of Kroeber & Kluckhorn (1952)


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basically meant as webs of significance shaped by human beings by sharing common language,

symbolic resources (i.e. religion, cooking, storytelling and other daily activities) and so on6.

The most quoted Geertz definition of culture is the following: Believing, with Max Weber, that man is an animal suspended in webs of significance he himself has spun, I

take culture to be those webs, and the analysis of it to be therefore not an experimental science in search of

law but an interpretative one in search of meaning7.

According to this definition, cultural meanings are not given but shaped by human beings

in specific (social, institutional and material) contexts: to queue at the post office, give up our seat

on the bus to a pregnant woman, how to ask for a certification at the municipality, etc8.

The interpretation of the Geertzian notion of culture9 – as webs of significance or a kind of

network building process – to some extent deals with the implicit relational dimension of the law,

that has been described by legal philosophers and sociologists.

In fact, in the early 1960s, the American philosopher Fuller emphasised a kind of continuity

between formal and informal law, alleging that the life of formal law, its effectiveness, is

conditioned by informal law, being dependent on a network of meanings and tacit unwritten

conventions, rooted in social interactions10. Fuller’s conception of implicit law or customary law

seems to be not far from that of Bourdieu who used the concept of practice to explain the

functioning of some specific context of activity, which he defined “fields”. According to Bourdieu,

the law, like every other social field, is organized around a body of internal protocols and

assumptions, typical behaviours and self-referential values11.

In turn, contemporary legal sociologists and anthropologists introduced, on the one hand,

the notion of legal culture to describe “patterns of legally related attitudes and behaviour”12 and,

on the other, the concept of legal consciousness “to name analytically the understandings and

meanings of law circulating in social relations”13. Furthermore, Cotterell, in “Law in Culture”,

claiming that the effectiveness of law is rooted in culture14, proposes to use legal culture to

describe the function of law “to shape and orient social relationships”.

As it is well known, the sociological concepts of legal culture and legal consciousness have

contributed to the cultural turn (1980s) in the humanities and social sciences, re-orienting socio-

6 According to Geertz, culture is “an historically transmitted pattern of meanings embodied in symbols, a system of inherited conceptions expressed in symbolic forms by means of which men communicate, perpetuate, and develop their knowledge about and their attitudes toward life” (Geertz 1973d:89). 7 Geertz (1973: 5). 8 For the meaning making, see Bruner (1990). 9 See for example Bruner (2008). 10 Fuller (1968, 1969). See also Postema (1994). For the distinction between law, norm and customs, also see Bohannan (1965). 11 According to Bourdieu, the function of the law consists in the transformation of “regularity” into “rule” (Bourdieu 1987). See also Bourdieu (2002). 12 Nelken (2012: 7). See also Friedman (1997) e Merry (2012). 13 Silbey (2008). 14 In his contribution, Cotterell (2004) explains the different implications of culture in the law. These include, for example, the political of recognising groups in multicultural contexts.


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legal research towards “the unofficial, non-professional actors’ participation – citizens, legal

laymen”15, etc.12.

Nevertheless, even in considering the revolutionary impact of those sociological concepts

in orienting legal research toward ordinary life, they seem principally focussed on a dimension of

“subjective” representation of the law by lay people rather than a dimension of analysis of “how

the law is acted” by them16.

Thus, a question arises:

how to fill the gap or how to deal a dimension of representation of the law (legal culture

and legal consciousness) with the plotting of the law in action?

ANSWERS

The Legal Agentivity of the Actors and the ANT: taking the distances from the current Law

and Society debate?

Approaching the law in action and the law from the bottom is the claim of the New Legal

Realism that can be considered as a prosecution of the cultural turn or in continuity with it, as it

puts emphasis on “the way law works for the average citizen, in daily practice”17.

In order to capture the impact of reality on law and achieve a bottom up analysis, New

Legal Realists propose to integrate empirical research using ethnography, psychology and

qualitative research, included in depth interviews with lay people in order to understand their

experience of the law. They propose to move from the law in books to law in action, from

everyday life to the highest courts18. In a similar way, Clinicians in analysing the ways in which the

15 See Silbey (2010) 16 In this kind of investigation “law operates not apart from or ‘on’ social life, but within and through the very cognitive experiences and intersubjective relations of routine social practice. Legal knowledge forms part of each citizen’s ‘consciousness’, which develops and changes over time through practical experience with legal conventions. Hence this scholarship represents a shift of attention from the objective, from ‘the things out there’, from the ‘law’ as commonly understood (in the forms of codes, rules, procedures), to the subjective, the perceived and the experienced. That is, it represents an approach of studying legal consciousness”. See Xin He, Lungang Wang, and Yang Su (2013). 17 The project of new legal realism is to understand “how law affects everyday life, or it could mean studying how legal processes pan out for people who wind up in courts or lawyers offices. It could push us to ask how well-meaning changes in administrative and bureaucratic practices work out for the workers or the public”. This approach has also been called studying the "law in action" or "law on the ground"”. http://www.newlegalrealism.org/about/bottomup.html 18 As it is well known, the distinction between “law in books” and “law in action” has been introduced since the time of Jerome Frank (1930), and even before (Pound 1910), to emphasise the importance of a legal education based on cases method, the analysis of the law in context, issues of social justice, etc. Especially, with the Legal Realism was increased the idea that the study of the law should be integrated with the study of history, psychology, economics, ethics, and anthropology. The aim of this new way to approach the law was to make students aware of the social and “human” side of the administration of justice, highlighting some of the vagueness related to the so-called objectivistic tradition.

http://www.newlegalrealism.org/about/bottomup.html


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law is done and practiced in a given context, plea for better interconnections between theories

and practice in order to make students aware of the consequences of the law in real life19.

In sharing some of the New Legal Realism’ claims and the clinical law approach, I propose

focussing on human beings’ legal and judicial paths in everyday life, through an interdisciplinary

method of analysis that combines legal issues with paradigms and tools taken from the humanities

and social sciences, in particular from socio-cultural psychology and ethnography20.

In the meantime, I take some distance from the current debate on law and society, agreeing

with McGee’s claim, according to which we should study law and society in a different way legal

sociologists present it21. I also share Latour’s position, who does not consider law and society as

distinct unities, being the law self a social connector, among others22

Therefore, my proposal is to provide new tools – theoretical and methodological – for the

investigation of the social life of law. Recent researches, focusing on the lawyer-client relationship,

have drawn the attention on the attitude of the client - as layperson - to cooperate with the

lawyer, having an active position in the solution of his/her case23. In my past investigations, I also

showed which kinds of initiatives the client is capable of, in solving the case, in collaboration with

the lawyer24.

For the present INQUIRY, I propose to analyse the client’s role autonomously or

independently through the relationship with the lawyer and recuperate his exclusivity as a human

being25, in tracing his degree of agentivity in acting the law and access the justice system, that are

traditionally considered technical fields of expertise. My interest is to investigate how the

layperson manages to be the protagonist of the legal case, how with or without the help of his

lawyer, institutions and the more extended network (friends, community, etc.), he builds or not a

winning strategy for the solution of the case? How the different cultural backgrounds will affect

his/her representation of facts and his/her legal agency, resulting in the evolution of the trial or

bureaucratic procedures?

With these aims, I propose to shape the concept of legal agentivity so as to describe the

ways in which the layperson acts the law: in his/her own environment, if he/she is a native or

abroad, when he/she is a foreigner. In fact, my cultural oriented hypothesis is that there is a kind

of correspondence between a degree of awareness of the socio-cultural environment, included a

kind the knowledge of the legal system and a successful legal agentivity.

In previous works26, I moved from the notion of agency, as it has been defined by

sociologists, linguists and psychologists, to show how human actions may affect legal or judicial

cases solutions, in the relationship with legal institutions27. I adopted Bruner’s specifications of

19 See Amsterdam (1984); Elmann (2011/2012) 20 See also Erlanger et al. (2005); Kruse (2012). 21 See also McGees’ project (VX, 2014). 22 McGees (2014). Latour (2002, p. 321).

23 Elmann et al. (2009). 24 Di Donato (2008, 2011) and Scamardella & Di Donato (2012). 25 On the emergence of the subject, see Zittoun (2012). 26 Di Donato (2012 a, b). 27 The concept of agentivity has been further developed by the pragmatists of language to emphasize the performativity of the language in context (Duranti 2007). For the definition see Ahearn (2001).


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agency to describe lay people’s ability to define their own paths of life and actions within specific

constraints, both legal and cultural28. Most of these specifications require social implications or

engagements29:

1. The first specification concerns the same notion of agency30. Bruner defines it as

voluntary acts that are produced with the intention to realise aims.

2. The second – commitment – requires the coherence of an agent with respect to a

projected line of actions. It refers to tenacity, sacrifice, and so on.

3. The third – resources – focuses on internal (to be patient, intelligent and so on) but also

external resources meant as tools for action: power, social legitimation, sources of information,

characteristics of materials and institutional settings and so on.

4. The fourth – social references – refers to people whom an agent gets into contact with to

obtain evaluations and legitimation of aims, commitments and resources. They can be the

members of a group (syndicate) or ideal or cognitive groups (i.e. the police or the justice system).

All these factors make individual agentivity socially shared.

I propose to expand or revise the notion of agentivity, as outlined above, in considering the

definition of agency as proposed by Latour who translates this word as MODES OF EXISTENCES, in

ANT. According to Latour, we cannot reduce the actor to his social dimension and a canonical

script of action, without surprises on the scene. That is to claim that the actor also has an

autonomous dimension by society31:

Action should remain a surprise, a mediation, an event. It is for this reason that we should begin, here again,

not from the ‘determination of action by society’, the ‘calculative abilities of individuals’, or the ‘power of the

unconscious’ as we would ordinarily do, but rather from the under-determination of action, from the

uncertainties and controversies about who and what is acting when ‘we’ act—and there is of course no way

to decide whether this source of uncertainty resides in the analyst or in the actor. If we have to readily accept

the central intuition of social sciences—if not there would be no reason to call oneself a ‘social’ scientist—we

should move very slowly so as to remove the poison that is secreted when this intuition is transformed into

‘something social’ that carries out the acting. Contrary to what so many ‘social explanations’ seem to imply,

the two arguments not only don’t follow one another, but they are in complete contradiction with one

another. Since that which makes us act is not made of social stuff, it can be associated together in new

ways32.

Latour invites us to consider several combinations of actions and different sources of actions:

An ‘actor’ in the hyphenated expression actor-network is not the source of an action but the moving target of

a vast array of entities swarming toward it. To retrieve its multiplicity, the simplest solution is to reactivate

28 Bruner (1997: 145 ff). Se also Amsterdam & Bruner (2000). 29 In this sense, the notion of agentivity is also related to that of context, highlighting the active role of individuals

inter-acting in social contexts with the intention to produce results (aims) that can be shared within a network. I

propose to adopt a “flexible” notion of context that refers to a “meaning-making activity” as the product of

negotiations between different visions of reality, intentions and, emotions among social actors. For a critical approach

to the study of the law in context see Nelken (2008). 30 In this context, I adopt the notion of agentivity despite that of agency to underline the socially shared meanings of individual actions. 31 See Zittoun (2012). 32 Latour (2005, pp. 45-46).


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the metaphors implied in the word actor that I have used so far as an unproblematic placeholder. It is not by

accident that this expression, like that of ‘person’, comes from the stage. Far from indicating a pure and

unproblematic source of action, they both lead to puzzles as old as the institution of theatre itself—as Jean-

Paul Sartre famously showed in his portrait of the garcon de cafe ´ who no longer knows the difference

between his ‘authentic self’ and his ‘social role’. To use the word ‘actor’ means that it’s never clear who and

what is acting when we act since an actor on stage is never alone in acting33.

Finally, the actor is never alone on the scene, as he is part of a network and the network is part of

him: The question is to decide whether the actor is ‘in’ a system or if the system is made up ‘of’ interacting

actors. If only the vertiginous swing could come to a gentle stop. (…) Should we try to strike a compromise

between actors and system, or should we go somewhere else? On the face of it, ‘actor-network’ should be

a good candidate for a compromise: the preformatted solution would be to consider at once the actor and

the network in which it is embedded—which would account for the hyphen. Such a lukewarm solution

would add itself to the many others which have been proposed in order to reconcile the two obvious

necessities of the social sciences: interactions are over- flowed by some structures that give shape to them;

those structures themselves remain much too abstract as long as they have not instantiated, mobilized,

realized, or incarnated into some sort of local and lived interaction. The temptation is all the greater since

dialectics, like Ulysses’s sirens, might generously offer its profusion of loops to wrap up and tie off such

compromises: actors will be said to be simultaneously held by the context and holding it in place, while the

context will be at once what makes actors behave and what is being made in turn by the actors’ feedback.

With circular gestures of the two hands turning faster and faster in opposite directions, it is possible to give

an appearance of smooth reason to a connection between two sites whose existence remains as problematic

as before. (…)34

In conclusion, to trace actors’ legal actions or legal agentivity means to connect people,

facts, emotions, places within the network, in considering the law as a special connector of the

network itself.

METHODS

Narrativity and Materiality. Tracing connections within the legal disputes.

Moving from theories to the ground, I propose to trace connections inside and outside the

trial in order to show how law shapes laypeople’s lives and how law is shaped by their agentivity35.

In order to trace this kind of connections, I adopt two investigation tools: client’ (as legal

actor) narration to re-construct the legal story and give him/her “voices”, on the one hand and the

analysis of files of the trial, to catch up with the materiality of the law and try to comply with the

“need” of objectivity of facts, on the other. Narration and materiality will also provide traces of the

culture – meant as modes of existences – in which facts are shaped. The legal story that derives

from the reconstruction process of documentary materials (files, newspaper journal, images)36,

33 Id., p. 46. 34 Id., pp. 169-170. 35 In a sociological meaning, the dispute is the social relationship that precedes and pervades the trial. See Abel, R. (1974). 36 On the persuasiveness of images in facts-construction, see Sherwin (2012-2013). For a kind of visual argumentation, see also Latour (1995).


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including transcripts of interviews37, is the outcome of different narratives in which the case takes

shape – the voice of the client, the lawyer, the judge, the role of public opinion, etc. – as the

results of a polyphonic discourse about the law. Materials also include pictures of the characters,

newspaper journals and every material that could contribute to THE INQUIRY38.

The aim of this methodology is twofold: to “humanise” legal research through testimonies

and safeguarding the levels of objectivity required by the formal law39.

Why adopt a narrative perspective to connect facts, character, laws, and places into the

NET40?

First, there is an epistemological dimension to consider : socio-cultural psychologists,

literary critics and cultural anthropologists point out the attitude of human beings to organize the

knowledge of reality through narration: “stories construct facts that comprise them”41. Over the

last twenty years, the use of storytelling in the law has been particularly useful to highlight the

constructed dimension of the trial42

Second, narratives (literary o legal) have a social function. Stories may have both a

conservative as well as subversive or transformative value of the social order43. Courts’ decisions

and lawyers’ narrations may deal or not with the hegemonic culture in society, in “maintaining” or

not the social order, also shaping collective representation in society44.

Third, narratives (literary or legal) have a re-constructive function. The plot of a legal story

may be re-constructed with a method that coincides with the literary one45. As in the literary

novel, in a legal story, the plot, the characters and the setting are identified as the key elements

that make up a narrative46.

Fourth, narratives shape social exchanges. In an ethnographic approach, legal narratives

may be considered in their dynamic dimension, located within social practices and specific action

contexts (business, organizational, etc.)47. The ethnographic approach especially takes into

account the interactive and relational dimensions of narratives that deals with communicative

37 For the Life Story Interview, see Atkinson (2002). For the Narrative Interview, see Rosenthal (2007). For mixing methods of interviews, see Kvale (2007). 38 Di Donato (2012a). 39 Cfr. Bourdieu (2002 and 2003); Duranti (2007); Latour (2002). 40 For a more extended uses of law and narration, see Di Donato & Scamardella (2013). 41 See Bruner (1991: 1 ff.), White (1981: 1 ff.). The general function of storytelling as a “representation of sequential events”, cf. also Kafalenos (1999: 53). 42 The Amsterdam and Bruner’s perspective according to which “stories construct facts that comprise them” (2000) and the adoption of legal storytelling to analyse the trial inspired further researches about facts construction into the European legal debate (Di Donato, 2008; Taruffo 2009; Taranilla 2012). This approach has been also adopted by analytical legal theorists such as Michele Taruffo who pleas for an epistemic model of truth acquiring within the trial. For a similar analytical approach, see Twining (2006). 43 See Ewick & Silbey (1998). 44 See Cover (1983). 45 For more details about the function of narrative plots in stories, see Brooks (2004 :17) as well as Propp (1968 :21). 46 See also Kafalenos (1999: 55), who proposes a comparison between the actions of the characters in a story and the

actions of individuals. In both cases, there will be actions generated from information available that produces events

that will be interpreted and that will produce new actions. Characters and actions, individuals and events are held

together by the narrations. 47 Regarding narratives and contexts, Ochs and Capps (2001) discuss “conversational narratives” in order to emphasize the interactive and collective nature of narration.


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exchanges. This contextual dimension of the narrative analysis – still not sufficiently developed by

legal scholars – deals with a dimension of the inter-activity of human beings48.

SCHEMAS

The combination of theories of narrations and ethnographic methods of investigations. Tracing the connections within a case. 1. Listening history/facts through the interview with the client-legal actor as PP (principal investigator) 2. Reconstructing facts on the basis of the transcript of the interview and analysis of the files (and newspaper articles and so on) 3. Tracing the network (law, politics, etc.): a. Describing the characters (lay people, legal institutions, private offices, etc.); b. Tracing the connections between them (exchange of documents – reconstruction of

interactions through the interviews); c. Tracing the kind of the agentivity played by the actors:

- Institutional dimension (i.e. asking for the naturalization to the different levels, municipality, cantons, commons, etc.): tracing the connections between A,B, C…

- Legal dimension (collaboration with the lawyer): tracing the connections between A,B, C…

- Judicial dimension (recourse to the Court): tracing the connections between A,B, C…

- Executive dimension (applying judicial decision): tracing the connections between A,B, C…

4. Stabilizing facts.

CASES

Following the Trajectories of the Agents: Natives/Immigrants

Based on the theories and methods outlined above, over the last ten years, I analysed

cases first as a native researcher in the South of Italy and currently as a foreigner researcher, in

North-West Switzerland. My interest is to understand: how do cases arise and take shape in a

given context49? How legal stories are shaped by local practices of law’s application and

laypeople’s representations of law and justice?

The proposal of a comparative analysis between two different contexts of actions is to

trace the kind of legal agentivity performed by the protagonists of cases when they are native

legal actors or foreigners, acting in their own context or abroad. In following the traces of actors in

the South of Italy and in North-West Switzerland, we are confronted to two different kinds of

48 An original use of ethnography was made by Bruno Latour who carried out a “desecration” study of the French Council of State, showing how the objectivity of the fact is not something pre-existing but is the result of transformative and communicative processes inside the Council of State (Latour 2002). 49 This kind of research is different from the one realized by O. G. Chase (2005) that showed the influence of culture in shaping the forms of disputes (i.e. ADR in USA or the oracle for the Azande) and truth acquiring proceedings.


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“normative culture”. One, characterising the South of Italy, is mainly implicit as it is inked to a kind

of negotiation process of formal rules in daily life. This kind of negotiation process, due in some

extent to the wake presence of the State in everyday life50, gives forms to customary rules that

orient social life and influence social interactions inside and outside the trial. In this sense, cultural

rules seem to dominate the formal law.

On the other hand, the normativity of the Swiss culture is both implicit as well as explicit,

as it is rooted in traditions, customs and formal rules. The formal law is also permeated by cultural

norms51. The Swiss immigration law, for example, asks foreigners to be integrated into to the Swiss

legal and cultural systems, learning languages, sharing cooking and so on. The trouble is that the

meaning of being “integrated” requires interpretation both by the Swiss authorities as well as the

foreigners, and in so doing it leaves merges of appreciation to the Swiss authorities, in evaluating

requests of naturalization or permits52.

Based on these two different representations of implicit/explicit normativity, I report two

cases, from Italy and Switzerland.

CASE 1

I start my analysis considering an Italian case. It is a labour law case, the case of T*53, a

theatre actor who performs a high level of agentivity, showing herself to be very able to play the

role of the “actor and director” in the solution of her case. T* is victim of mobbing and sexual

abuse by a colleague who plays a kind of management role in the theatre company. Thanks to

personal resources and a good consciousness of the social and legal environment, T* is able to

quickly react involving colleagues, trade unions, a lawyer, legal institutions for the solution of her

case and a general protection of rights, for her and her colleagues, into the context of the job. In

the case of T*, it is possible to observe an interesting combination of different levels of agentivity.

The first level is “individual” and concerns the personal resources of T*: internal resources -

she is able to interpret the situations and project a coherent line of action - and external resources

- she involves her colleagues by sharing her problems and emotions and looking for solutions with

them - with a high level of commitment.

The second one is “social” - social resources - as T* is able to use territorial and institutional

networks to legitimate her agentivity against the theatre company that tries to dismiss her from

the job. She reports the man who molests her and who tries to expulse her from the job to the

police; she involves the trade unions since the workers’ wage are not correct; finally she involves

the mayor of the village denouncing irregular procedures by obliging the theatre company to stop

all its activities. This kind of “agentivity” makes it possible for T* to win in the trial: she is

supported by a good lawyer who, thanks to the good strategies performed by T*, can easily

50 Maggioni & Giasanti (1979). 51 See Bohannan, 1965. 52 On the topic of the meaning of the notion of integration into the Swiss legal system and on its impact in foreigners’ legal paths, see the scientific project held by the University of Neuchâtel (Faculty of Law and Faculty of Arts) and

funded by the SNSF : http://p3.snf.ch/project-147287. 53 The case is part of a broader corpus of data, analysed in Di Donato (2012).

https://webmail.unine.ch/owa/redir.aspx?C=wKeR35CqXkWpJR-yZIz9GAZpj0iMMdEIAKV1k4HbAKYl5uIJkRKQf0qZaoiHv_APFpRdwJDqTqs.&URL=http%3a%2f%2fp3.snf.ch%2fproject-147287


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demonstrate the torts provoked against her by some of the colleagues and supervisor of the

theatre company. In turn, the judge (who is a woman) is capable of “reading” the clear but implicit

dynamics of exclusion in the professional context and declare as discriminatory and illegitimate

the decision of the theatre company to dismiss T* from the job. Consequently, the torts are

repaired: T* receives damages from the company who is required to pay; the company is also

obliged by the mayor to stop all the activities that are judged against the law. In the end, T*’s

colleagues organize a new autonomous theatre company.

[the full reconstruction of the case has been omitted]

See an example of document for the reconstruction of T*’s case:

Image 1. The report of T* to the local police


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Translation of the report’s content (image 1):

TO THE COMMAND OF THE CARABINIERI STATION OF XXX

The Undersigned Vxxx born in xxx (AV) on xx/xx/1964 and resident in AVELLINO in Via xxx, occupation, promoter

employed by the cooperative xxx Soc. Coop a.r.l., working at the xxx managed by the Cooperative xxx, legally married,

formally

REPORTS

Mr. Pxxx, resident in Via xxx, Technician at the Coooperative a.r.l for the following reasons:

Mr xxx, stage technician as well as work safety officer of the structure xxx (theatre managed by the Cooperative

xxx soc. a.r.l.) has on numerous occasions manifested a violent and aggressive behaviour towards me. Making

psychological threats (on various occasions and without due cause, he has manifested violent and aggressive

behaviour, slamming doors, shouting and distracting me while working, creating a state of anxiety) as well as verbal

threats (whore go fxxx yourself, whore etc.) On the basis of the aforementioned, I hereby ask (being afraid of my own

personal being and safety) that Mr xxx is punished according to the law.

Cxxx 6 June 2002 Signature

CASE 2

The second story deals with a case of naturalization in Northwest Switzerland (Canton of

Neuchatel). The protagonist, N.M*, is a woman arrived in Switzerland from Cambodia, in 1979, at

the age of 11, with her parents, as asylum seekers.

In 1989, she married a doctor from Pakistan and converted to Islam. They had two children.

In 1999, for the first time, N.M.* asked to be granted naturalization, at a municipal level, for her

and her children. The answer of the local committee was negative as it evaluated that, at the

naturalization exam, N.M* did not show any signs of integration to the Swiss uses and customs, as

she wore Islamic clothes at the naturalization text, showed signs of affection to the Muslim

religion and so on.

In 2006, a new naturalization application was made by N.M* and new obstacles arose:

irregularities in tax payments were presumably found by the cantonal justice department that

suspended the naturalization procedure. In 2009, the State Council refused naturalization and

N.M* was invited to re-start the procedure once she fulfilled all the naturalization conditions

(including tax payments). N.M* petitioned against the decision of the State Council, claiming that

the financial situation was not correctly evaluated by the local authorities. After different legal and

judicial steps (administrative recourse to the State Council, subsidiary Constitutional petition to

the Cantonal Tribunal), the Federal Court recognized problems in the fact finding procedure by the

naturalization committee. The Federal Court sent the case to the lower Court (Cantonal Tribunal)

and the State Council, asking them to re-examine the case, in respect of the constitutional

principles, as well as the Swiss law and establish the correct personal and financial situation of

N.M.* and her family, in order to give them the opportunity to accomplish the naturalization path.

Upon examining this case, we can realize a growing degree of agentivity of N.M.* as a

foreigner as legal-cultural actor. This level of agentivity seems to some extent to coincide also with

the meaning of being “integrated”, according the Swiss authorities. In fact, in a first phase of the

N.M.* naturalization path (1999), integration seem to be interpreted by the Swiss authorities as


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being accustomed to the Swiss customs and life. So we can observe a conflict of visions between

the «legal-cultural» representations of the Swiss authorities who ask to N.M* to be accustomed

and the cultural personal representations of NM* who wears Islamic clothes at the naturalization

interview, claiming also to share her husband’s religion (the Muslim one). Arguments of “daily life”

seem to be addressed by N.M* to the naturalization committee in order to convince them to grant

naturalization (feelings of uncertainty for her future and her children future, and so on). This kind

of agentivity is individual or not socially shared. (On the other side, the Swiss authorities use

evaluative, cultural or political arguments to sustain their decision). In a second phase of the N.M*

naturalization path (2006), where the Swiss legal system appears more flexible in dealing with

immigrants “cultural rights”, the authorities do not express any doubts about cultural elements

showed by N.M.* (languages, uses and customs). This time they just use financial issues (tax

payments) to refuse naturalization.

Thus the solution of the case has been possible in part thanks to a progressive awareness by

the protagonist of the case about the functioning of the Swiss system: i.e. how to act the law,

which kind of authorities to access, whether or not to consult a lawyer and so on.

[the full reconstruction of the case has been omitted]

See an example of document for the reconstruction of the N.M*’s case:


13

Image 2

NOT FOR CONCLUSIONS

The protagonist of the two cases, responded in some extent to the outlined model of agentivity

in showing different degrees of legal agentivity in contributing to solve the case, dealing with

normative and cultural conditions of existence (in their own country or abroad). Above all, they

performed their uniqueness as human beings on the scene of the LAW.

Moving from these concrete examples of law in action, I plea for a theory of law without

(disciplinary) boundaries, capable of recognising human beings in their unicity and drawing

together arts, philosophy and sciences.


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In this sense, THE INQUIRY represents a unique opportunity TO RETHINK THE LAW as a

source of civic education and social cohesion, on the one hand, and a kind of performing ART – the

art of everyday life – on the other.

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