Criminal Law and Cultural Diversity

ISBN : 9780199676590

Will Kymlicka; Claes Lernestedt; Matt Matravers
224 ページ
163 x 239 mm

The idea of a cultural defense in criminal law is often ridiculed as ". To allow someone charged with a crime to say " 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.


1. Introduction
2. Criminal Law and Culture
3. Culture and Criminalization
4. Between Denial and Recognition: Criminal Law and Cultural Diversity
5. Responsibility, Morality, and Culture
6. Cultural Defense and the Criminal Law
7. Family Matters: Is there Room for 'Culture' in the Courtroom?
8. The Cultural Defense: Reflections in Light of the Model Penal Code and the Religious Freedom Restoration Act
9. What Do We Have to Fear from the Cultural Defense?


Will Kymlicka's work, translated into 34 languages, has focused on how democratic countries address issues of ethnic, racial and religious diversity, with a special focus on the theory and practice of multicultural citizenship. He is the author of seven books published by Oxford University Press, including Multicultural Citizenship (1995), and Multicultural Odysseys: Navigating the New International Politics of Diversity (2007). He is the Canada Research Chair in Political Philosophy at Queen's University in Kingston, Canada. ; Claes Lernestedt was educated at Stockholm University. He has written mostly in the fields of criminal law and philosophy of criminal law, with emphasis on the general part of criminal law in a broad sense. His current project addresses issues related to criminal law - not least the rules for ascription of responsibility - and mental disorder. He is Professor of Criminal Law at Uppsala University. ; Matt Matravers was educated at the London School of Economics and Political Science, he is one of the founding co-editors of the journal Criminal Law and Philosophy. He has written extensively on criminal law theory and the justification of punishment and on responsibility in both distributive and retributive justice. He is the editor of five books and the author of Justice and Punishment (OUP, 2000) and Responsibility and Justice (Polity 2007). He was elected to the UK Academy of Social Sciences in 2012. His current project is a monograph on responsibility in the criminal law. He is Professor of Political Philosophy at the University of York.