Speaker: Patrícia Jerónimo Associate Professor of Law at the University of Minho and Visiting Fellow at the Robert Schuman Centre for Advanced Studies
Chair: Federica Casarosa, Part-time Professor, EUI
Discussants: Sarah Nouwen, Professor of Public International Law, EUI; Isabela Delia Popa, Lawyer and Trainer at Union of National Romanian Bar; Jaroslaw Gwizdak, Rule of law expert, INPRIS
The role of the judiciary in adjudicating cultural claims has been in the public eye since the ‘cultural defence’ rose to prominence in academic and political debates in the 1980s. Domestic courts in Europe and North America have become places of encounter and tension among different cultures and legal traditions, while judges remain largely unfamiliar with tools of cultural analysis and wary of departing from a formal reading of equality to accommodate difference. Courts are deemed to be better placed than the legislator to find reasonable accommodation between the needs of individuals belonging to ethno-racial, religious or linguistic minorities and other concurring interests, on a case-by-case basis. At the same time, there is growing awareness of structural racism impacting the justice system and concern about judges’ subconscious biases and lack of skills in intercultural communication. This presentation discusses how these issues are perceived by judicial actors in Portugal and how they are reflected in the diversity-related case law of Portuguese courts, based on the findings of a multidisciplinary research project conducted between 2018 and 2022 (InclusiveCourts). The findings suggest that, in Portugal, much like in other domestic jurisdictions in Europe, judicial actors have limited awareness of the complexity of cultural diversity and of the challenges that it may pose to the operation of the courts and the attainment of equal justice. This disconnect is compounded by the fact that Portuguese courts do not seem to be familiar with international human rights standards on cultural diversity and minority rights (as they are rarely relied on in Portuguese court rulings), and that there are still misunderstandings as to the (in)compatibility of minority claims with human rights’ norms.
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