Protecting vulnerable subjects and\or increasing social exclusion? Some remarks on the use of ‘culture’ in penal law in European societies

Female genital mutilation (introduced as a specific crime in several european penal codes), manghel (bagging) or burqa dressing represent, despite their diversity, practices that criminal law (substantive and / or procedural) defines as ‘cultural’ and incompatible with fundamental principles and rights of European legal culture. Starting from these cases, the report proposes some considerations on the implications and consequences of cultural conflict 'management' through the criminal law instrument. If, on the one hand, the use of criminal law is motivated on the basis of the violation of fundamental rights that these practices produce, on the other hand the criminalization of these practices often determines the criminalization of entire groups, too, overlapping the former with the latter, in a process of essentialization and cultural trivialization that, consciously or not, contributes to exacerbating differences and perpetuating processes of marginalization and separation.