Law, Cultural Diversity, and Criminal Defense (Cultural Diversity and Law)

Description

American legal scholars have debated for some time the need for a cultural defense in criminal proceedings where minority cultural information seems perti nent to a finding of criminal responsibility in situations where a minority cultural defendant has violated a valid criminal statute. This work presents a systematic analysis of this issue. Drawing from sociological, anthropological, and philosophical materials, as well as traditional legal discussions, the authors develop a scheme that indicates when cultural factors can be used as the basis for such a defense and when they are irrelevant to a finding of criminal responsibility. The argument moves from general concerns of social justice that apply under conditions of social and cultural pluralism to practical policy recommendations for the operation of American criminal justice. It thus connects more theoretical materials with the practical concerns of jurisprudence. The justification for legal recognition of a cultural defense in American criminal law is anchored firmly in American constitutional law. Cover Title Copyright Contents Introduction 1 Law, politics, and social justice Déjà vu all over again Law and social homogeneity The great American compromise In defense of social justice 2 The question of culture Culture and being human Conceptions of culture Norm systems and sharing Culture and action-guiding norms Culture and morality 3 Social justice and legal practice Social justice: the freedom factor The right to cultural autonomy Freedom and cultural autonomy Law, crime, and justice Government and sovereignty 4 Criminal defense and cultural autonomy Culture and crime: a classification scheme Category 1: Intra-cultural controversies Category 2: Inter-cultural controversies Category 3: Culturally variable controversies Category 1: Intra-cultural controversies Kargar: Innocence and cultural practice Crow Dog: Internal cultural jurisdiction Moua: Internal cultural politics Assad: Intra-cultural abuse The cultural defense and inter-cultural affairs Butler: Inter-cultural violence Le: Inter-cultural threats Cultural autonomy and the cultural defense 5 Culture and the Constitution Immunity rights Cultural autonomy and civil liberty The free exercise of religion and cultural autonomy Cultural autonomy and freedom of association Due process of law and cultural autonomy A cultural defense apology The absolutist objection The arbitrariness objection The equal protection objection The intolerable practice objection Conflict and cultural change 6 Culture and criminal responsibility Cultural variation and criminal law Cultural variables and the cultural defense Cultural meanings and criminal wrongdoing Culture and justice Bibliography Index