Criminal Law and Cultural Diversity
Will Kymlicka, Claes Lernestedt, Matt Matravers - Oxford University Press, 2014
The
idea of a cultural defense in criminal law is often ridiculed as
"multiculturalism run amok". To allow someone charged with a crime to
say "this is my culture" as an excuse for their action seems to open the
door to cultural relativism, to jeopardize the protection of
fundamental rights, and to undermine norms of individual responsibility.
Many scholars, however, insist that cultural evidence is appropriate,
indeed essential, for the fair operation of the criminal law. The
criminal law is society's most powerful tool for regulating behaviour,
and just for that reason we apply strong safeguards to ensure that
criminal sanctions are applied in a fair way. When it comes to
individuals, we want our rules for judging responsibility and punishment
to track the actual blameworthiness of the specific individual being
prosecuted for a specific action in the past. Cultural evidence may help
improve our judgements of individual blameworthiness and desert;
indeed, cultural evidence might even be necessary if the practice of
punishing individuals is to be legitimate and equitable. According to
its proponents, the use of cultural evidence when judging individual
blameworthiness is a natural extension of the logic of existing criminal
law doctrines regarding defences, and of the logic of current
philosophical theories of responsibility and agency.
This volume
brings together scholars of both criminal law and philosophy to
rigorously assess these ideas. Each of the chapters addresses a
different dimension of the issue, from a range of perspectives, with
varying degrees of sympathy or scepticism regarding cultural defences.
The result is an important and original contribution to the literature.
It explores why cultural diversity raises distinctive challenges in the
criminal law context, not found in other domains of the multiculturalism
debate, while also exploring how this particular context raises
fundamental issues of agency and responsibility that are at the heart of
broader debates in legal, social and political philosophy.