Cultural Accommodation and the Criminal Law

Abstract

This chapter looks at the vexed question of whether and how cultural diversity impacts on the criminal justice system, which is supposed to deal with the universally agreed evils to which culture is supposed to be irrelevant. The author suggests that the opposite view is more convincing. Culture defines the meaning of an action, and we cannot understand what an individual was doing when he acted in a particular manner without understanding his cultural background. An act of scarifying a child’s cheeks could be a case of causing him grievous bodily harm, but also that of initiating him in his tribe and doing a socially obligatory act. To ignore the difference is to do its agent an injustice. Similar considerations are important in determining an individual’s degree of responsibility, his state of mind, and whether he acted under duress. Culture can play hermeneutic, explanatory and justificatory roles in criminal law. While defending the first two, the author limits its third role and shows where it is justified and where not.