The Cultural Defense

Ratio Juris 15 (2):146-158 (2002)
  Copy   BIBTEX

Abstract

Because of immigration in the West, increased cultural diversity poses a variety of problems for the criminal justice system. This paper examines whether a so‐called “cultural defense” ought to be allowed as a freestanding defense to a criminal charge. Such a defense would “negate or mitigate criminal responsibility where acts are committed under a reasonable good‐faith belief in their propriety, based on the actor's cultural heritage or tradition.” The cultural defense, as a formal defense, and the use of cultural evidence in order to buttress one of the traditional defenses, are distinguished. Three cases are discussed to illustrate the issues. The possible similarity of the cultural defense to an ignorance or mistake of law defense is then considered. The latter is accepted by such theorists as Gunther Arzt and George P. Fletcher and also apparently in German law, but it is rejected by Jerome Hall on the ground that it undermines the objectivity of the criminal law. The similarity, however, is shown not to hold. It is concluded that a freestanding cultural defense should not be allowed.

Links

PhilArchive



    Upload a copy of this work     Papers currently archived: 90,593

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

Similar books and articles

Is There a Right of National Defense?Thomas Peard - 2008 - Proceedings of the Xxii World Congress of Philosophy 10:341-347.
Proportionality and Self-Defense.Suzanne Uniacke - 2011 - Law and Philosophy 30 (3):253-272.
In Defense of Self-Defense.Ann J. Cahill - 2009 - Philosophical Papers 38 (3):363-380.
The Case for Memes.Matt Gers - 2008 - Biological Theory 3 (4):305-315.
Can Sociobiology Adapt to Cultural Selection?Sandra D. Mitchell - 1986 - PSA: Proceedings of the Biennial Meeting of the Philosophy of Science Association 1986:87 - 96.
Defense.Kai Draper - 2009 - Philosophical Studies 145 (1):69 - 88.
Review essay/self‐defense theory.Martin R. Gardner - 1995 - Criminal Justice Ethics 14 (1):72-79.

Analytics

Added to PP
2010-09-11

Downloads
40 (#347,838)

6 months
6 (#202,901)

Historical graph of downloads
How can I increase my downloads?

Citations of this work

Why is (Claiming) Ignorance of the Law no Excuse?Miroslav Imbrisevic - 2010 - Review Journal of Political Philosophy 8 (1):57-69.
Law in Culture.Roger Cotterrell - 2004 - Ratio Juris 17 (1):1-14.
Reasonable women in the law.Susan Dimock - 2008 - Critical Review of International Social and Political Philosophy 11 (2):153-175.
La cultura del derecho europeo y el multiculturalismo. Desafíos para la democracia en el siglo XXI.Anetta Breczko & Agata Breczko - 2015 - Idea. Studia Nad Strukturą I Rozwojem Pojęć Filozoficznych 27:395-412.

Add more citations

References found in this work

No references found.

Add more references