Lo straniero errante. Il kirpan e le ragioni dell’“errore” dei Sikh

Recent judicial proceedings involving members of the Sikh community offer the opportunity to reflect on the approach employed by Italian jurisprudence towards “new” manifestations of religious freedom in the ever-changing national social context. The judges have determined that public carry of the kirpan, a symbol that is integral to the principles of Sikh belief, constitutes the offence of abusive carry of arms, punishable by Art. 4 of Law n. 110 of 1975. This law specifically forbids the faithful from wearing the kirpan, one of the so-called ‘Five K,’ objects that are dense with symbolism and, therefore, obligatory in the Sikh creed. This prohibition is symptomatic of how the pluri-cultural and multi-religious evolution of Italian society submits legal categories to a rigid semantic test. The question that arises is: can our institutes, designed to “operate” within a substantially mono-cultural framework, give effective responses to requests for recognition coming from the diasporic communities who dwell in the national territory? The answer is closely linked to the way in which we “use” legal categories. If we persist in using law as a form of preservation of the status quo, the result will be negative; on the contrary, it could be positive if we were able to make an intercultural use of law. With regard to this alternative, I analyze the institute of “error facti”, as stated in Art. 47 of the Italian Penal Code, to exclude the criminal liability of Sikhs insofar as they, merely through the wearing of the kirpan, proactively assume a ‘reality’ that is utterly different from that which Italian culture claims. This cognitive diffraction is culture-laden and causes a kind of blindness on the part of the Italian judges to the Sikhs’ categorical assumptions. Listening, instead, to the voice of the Sikhs and recognizing their (alleged) error, could help to defuse the apparent cultural conflict in concrete ways so as to discover, in the end, how semantic universes, when placed in a comparative position, can reveal unexpected axiological continuities.