Others on trial: The construction of cultural otherness in Belgian first instance criminal hearings

This paper presents an ethnographic account of how cultural otherness is discursively constructed in Belgian first instance criminal courtrooms, based on field observations and on the analysis of transcribed video-recordings. It contrasts unproblematic culturalizations of deviant conduct, in which mentioning the defendants’ cultural identity does not interfere with the smooth progression of discourse, with cases in which the foregrounding of their identity as a minority-member results in the ‘silencing’ of the defendants. The identity of the participant initiating culturalization as well as the difference between the expert and the lay perspective on the criminal process prove determining factors here: in the case of ‘unproblematic’ culturalizations, cultural otherness is emphasized by the defense attorney as part of an extenuation strategy, while in the ‘problematic’ cases, it is the defendants themselves who stress the relevance of their being a cultural other. The analysis argues that the judiciary's symbolic self-representation as ‘empty,’ i.e., as not co-substantial with any social body in particular, lies at the heart of this differential treatment.