Cultural defense, hate crimes and equality before the law

Abstract

The “cultural defense” before the courts, which seeks full or partial exculpation based on the cultural identity of either the defendant or the plaintiff, and the newly established category of “hate crimes,” which enhances the criminal sentences in cases in which the criminal acts from motives of prejudice, are two examples—tending in opposite directions—for culturally based exceptions to the principle of equal enforcement of the law. The justification for such exceptions is that the law is allegedly biased in favor of the cultural majority. But, if one accepts this claim, one should (1) complement these measures by creating a consistent set of rights and duties for the cultural communities, (2) limit these rights and duties to a merely legal, not comprehensive culture, (3) subject it to legislative review and (4) define clear legal relationships between the cultural communities. This paper suggests an option that complies with these requirements.