Il multiculturalismo negli ordinamenti giuridici comparati. Il caso italiano e messicano

The purpose of this research is to delve into one of those complex phenomena that characterize the societies of our time (it is not a phenomenon limited to a particular state, but extends to all). This phenomenon is cultural diversity, which has been addressed from various perspectives, with multiculturalism being one of them. In this way, theoretical foundations are reflected upon that can be applied in reality so that, in multicultural societies, the various sectors that compose them – particularly migrant populations, as well as ethnic, linguistic, and religious minorities - can be heard and contribute their historical and cultural background to the democratic project of the state. This research also emphasizes the significant wealth that multiculturalism can bring to democracy. The research is structured into three main chapters. In the first one, a contextual and conceptual approach to multiculturalism is undertaken. In this section, the focus is on how contemporary states are multicultural, both as a result of migratory processes and derived from the existence of ethnic, linguistic, or religious minorities present in their territory since time immemorial. This allows us to distinguish that there are different models of multicultural societies, some characterized by migratory phenomena (such as Italy) and others by the existence of groups such as indigenous populations (the case of Mexico). This distinction is not secondary, as these different roots allow us to explain both the nature of cultural recognition demands and how states have responded to this situation. Similarly, the first chapter also provides a conceptual approach to multiculturalism and explains why it is different from other models (such as interculturalism) and why we chose it in our research. The second chapter explains how multiculturalism is manifested in Italian society. Here, the idea that Italy is an eminently multicultural society is defended, largely due to the significant migratory flows existing, where Italy serves as both a final destination and a transit point to other locations. In these cases, migrant populations bring with them a heritage of cultural expressions that do not always align with those of the host country. The response of the Italian legal system to these events is examined, confirming that, in many cases, regulations allow for the assessment of the cultural factor that may lead to both favorable and unfavorable treatments. Additionally, the chapter analyzes how jurisprudence has tackled the challenges of multiculturalism in representative cases such as Islamic marriages, the use of the "kirpan" knife in public places among Sikhs, the crucifix in schools, and even female genital mutilation. At the same time, it is also concluded that Italy is a multicultural country not only due to its migrant population but also because of the presence of ethnic and linguistic groups that have accompanied the country's history for many centuries. The third chapter examines the case of multiculturalism in Mexico. In this chapter, there is reflection on a society where the multicultural phenomenon is primarily due to the indigenous peoples that have existed in that territory even before Mexico became a state. In this society, multiculturalism has gained constitutional recognition and has been accompanied by drastic actions in which the state and many of its foundations have had to be restructured. The historical process accompanying this situation is also observed, noting that it is a trend adopted by many Latin American states in what has been termed "multicultural constitutionalism." In the specific case of Mexico, we have observed what multiculturalism has entailed, how it has been addressed from a constitutional and legal standpoint, as well as the interpretations made of it by national and regional jurisprudence (through the Inter-American Court of Human Rights). Special attention is paid to explaining the right to self-determination and the various manifestations that this right takes, including legal pluralism. Exemplary cases are also presented, and reflections are made on the dangers, opportunities, and challenges that still exist. Based on the selected cases, some reflections dedicated to mutual learning that can occur between different societies are presented, particularly between Italy and Mexico. It is concluded that, although the cases are different, the value of multiculturalism and cultural diversity is shared. Rather, it is acknowledged that these aspects are present in all states and that, even the origins of diversity, whether derived from indigenous minorities or migration, are actually a matter of degree. Likewise, it is concluded that defending the multicultural model is compatible with addressing some of the main criticisms formulated against it. Thus, it is not a relativist model, it does not defend any multicultural expression, and it is compatible with protecting the individual and classic individual rights. Rather, when we say that multiculturalism protects culture, it does so not because it considers it as an abstract entity, but as an essential component from which identity is constructed and, consequently, the framework of action from which individual freedom is possible. We have also concluded that defending a multicultural model is not simple and, in fact, presents many more challenges than the assimilation model. However, it proves to be a model much more coherent with principles such as equality among cultures, non-discrimination, and the protection of human dignity itself. To some extent, we can even argue that it aspires to a fairer society. It has also been concluded that diversity recognition policies vary depending on the predominant type of multicultural society. When this origin is due to migration, these are individuals seeking to integrate into a new society and eventually become "first-class citizens," which is why they must undergo a process of assimilation that, however, is never complete as some expressions of cultural identity always remain, such as language and festivities. The demands of the migrant society involve a flexibilization of the receiving state so that they can continue these expressions that are maintained within their culture, without seeking, for example, territorial demands or self-determination. In the case of Mexico and the Latin American region, indigenous peoples, Afro-descendants, and similar collectives are recognized with rights to self-government, self-determination, legal pluralism, or territorial rights over properties they have historically occupied. These rights have an internal logic that allows for the preservation and reproduction over time of indigenous ways of life. Furthermore, these rights have not been obtained through a simple process but have involvedsignificant reluctance from the state. To a large extent, their attainment has been the result of the constant resistance of indigenous peoples (even through war) and, to some extent, the recognition of the immense abuses and violations suffered over time by Mexico's indigenous population. Regarding the study of the Italian and Mexican realities, it is observed that there is a common value in both systems in recognizing diversity and in the use of normative tools for its promotion and defense. Furthermore, it is noted that, although there are still resistances, there is a progressive evolution from the conception of a homogeneous state towards that of a plural state. In Italy, constitutional norms allow for this open vision, which is also reflected in various ordinary laws. However, greater harmonization of the entire legal system would be necessary, as it also includes some norms with a particularly negative impact on the recognition of cultural differences. In the case of Mexico, there is a broad recognition of multiculturalism towards indigenous populations; however, specific policies aimed at valuing the cultural factor present in the migrant population (typically those transiting through Mexican territory to reach the United States) are not detected, nor is multiculturalism allowed to be embraced by other communities with the same enthusiasm with which it is recognized for indigenous populations. Additionally, it is observed that some practices present in indigenous communities should still be brought back to constitutional principles, possibly through intercultural dialogue strategies. In relation to the political system, it is concluded that the "recognition policy" supported by multiculturalism can contribute to the strengthening of our democratic institutions. As is known, democracy is a model in crisis, as citizens are increasingly less involved in democratic life, political corruption scandals are frequent, political parties are losing supporters, and democratic culture is increasingly weakened, as evidenced by the frequent rise to power of anti-system leaders outsiders) characterized by demagogy, populism, and disdain for institutions. This situation reveals that democracies, as traditionally conceived, are in a state of progressive weakening and that societies are moving towards something different from what has always been known (and has proven ineffective in responding to citizens' demands). In this sense, the multicultural approach precisely proposes a radical shift from the traditional way of conceiving political institutions, particularly through a greater democratization of the spaces accessible to historically marginalized groups. This approach can be extended to other realities, in the sense that participation in democratic life in our societies needs to be further developed and reach all citizens of our States; this presupposes that the State and its institutions are not perceived by citizens as monolithic entities, that is, as entities little or not at all willing to listen to «the others». In this perspective, it's possible to imagine that a democratic political system built on the basis of a genuine exchange of ideas, reasoning, viewpoints, dialogue, confrontation, and, above all, openness to understanding (which doesn't equate to acceptance) of the cultural expressions of those seen as «different», would contribute elements to strengthen the democratic system. This would not only be because there would be mechanisms for direct and effective participation, but also because the body of knowledge would be enriched from diverse perspectives (and worldviews), dispelling arguments that view democracy as merely a product of Western exportation. An additional aspect that has been the subject of study in this research relates to the field of human rights. Both in Italy and in Mexico, multiculturalism addresses the so-called «difficult cases». Here, individuals who are born, raised, and live in a particular cultural context (in our research, migrants and indigenous populations) may have a code of conduct in which certain practices may be allowed or even considered obligatory, such as female genital mutilation in some African communities or child marriage in the case of some indigenous populations in Mexico. What to do in these cases? Mexican courts have decided that the limit of cultural diversity is defined by respect for human rights, assuming that there is some sort of universal consensus on what is acceptable and what is not in the face of cultural diversity. In this research, a model of liberal multiculturalism is advocated that does not defend cultural practices of this kind, but rather seeks to combat them, albeit with tools different from those commonly used in these cases (for example, the creation of a specific offense or the increase of sanctions to intimidating levels as a form of deterrence). Even in these cases, the value of multiculturalism has taught us that cultural practices of this kind have their roots in historical, religious, cultural, and social phenomena considered extremely important to some human groups. Therefore, it is a deeply internalized aspect in individuals' consciousness. In these cases, the creation of offenses or intimidation that the State may exert through other means is bound to fail, as such behaviors can only be modified through actions that address the reasons why the individual (and the group) act in that manner. Once again, the instrument used by multiculturalism is dialogue and interaction. Through an approach with the «other», we seek to understand their internal perspective in which a certain practice finds justification. In this way, the interpreter doesn't resolve the conflict solely through their comfortable external view but makes an effort to enter the cultural context of alterity. This allows for an understanding of why the person behaved in a certain way, what motives drove their actions, and even whether the person was truly capable of behaving differently. Thus, as mentioned, the judge assumes the role of an anthropologist, enabling the resolution of the conflict from a much broader perspective. Furthermore, in these cases, the recipient of the norm observes that legal operators, institutions, and the norms themselves are not foreign to them, but they can confront them with the expectation that their cultural expressions may be understood and even recognized. In this way, once again, the system gains in authority and democratic scenarios begin to expand. Moreover, even in those practices that, after the exercise of "intercultural dialogue," have been found to be contrary to elementary constitutional principles, the recipient understands that their voice, their worldview, and their rules are listened to and taken into account. It is precisely in these cases where dialogue assumes its greatest importance, as it is these exchanges of reasons and arguments that can lead to the modification of those practices internalized in the subjects. At the same time, this research concludes that culture is not a static and immutable entity, but rather constantly in dialogue and interaction with other cultures from which it borrows and reinterprets, and in doing so, it can even modify its own expressive modalities and rules. When these interactions are encouraged, there are many more possibilities for certain practices (such as female genital mutilation or marriages with indigenous girls) to be overcome. Conversely, when there is no interaction or dialogue and the approach is solely punitive, out of a natural instinct for self-preservation, individuals’ distance themselves from the State and retreat into a sort of ghettoization (as seen with the Romani population). In these cases, even the most condemnable practices do not disappear, but are doomed to perpetuate clandestinely.