Customary Norms vs State Law : French Courts’ Responses to the Traditional Practice of Excision

Introduction Customary norms and state legal systems often reflect different narratives which creates normative conflicts. Some traditional practices that were ignored when perpetuated only in colonised areas came to be considered crimes once ‘imported’ to Europe and to ‘Western countries’ more generally. These crimes transpose ‘in the realm of criminal law a situation of legal pluralism’. The study of the French legal system’s treatment of female genital cutting (FGC, excision) confirms this remark. FGC is an ancient practice that is widespread in many places, particularly Africa. It consists of the ablation, to varying degrees, of female genital organs. Because FGC violates fundamental rights such as the right to physical integrity, health and non-discrimination on the basis of gender/ethnicity/culture, the practice of excision creates a normative conflict between a customary norm and the state legal system. The written rules of the French Penal Code consider individuals as rights holders and value the right to physical integrity, health and non-discrimination. By contrast, excision, which is transmitted orally but inscribed on the bodies of women, implies a normative order where individuals are considered as part of a group, a group whose interests prevail over its members. In this context, the protection of individuals is usually linked to the maintenance of their ties to the group as well as to the respect of gender and status relations within it. Furthermore, in African traditions both the group and individuals have strong relationships with the ancestors (the dijin), and respect them to an extent unheard of in ‘Western societies’. In African traditional conceptions customary norms draw their strength not only from the moral support of the living, but also from that of the group’s members who have lived in the past. Moving away from tradition and questioning customary norms would be an affront to them and their role in legitimising the established order. The ancestors watch over the living but, if they are not respected, they may retaliate against them, especially against the child, who is the link between them and the adults, and therefore particularly vulnerable. In France, FGC is perpetuated mostly by West African immigrants. Inquiries conducted in this country examine the explanations these immigrants give to the practice and perpetuation of excision. These explanations concern custom, family, marriage, religion, ritual cleanness/purity (propreté), aesthetics and sexuality.