Legal Models For The Recognition Of Cultural Arguments In Criminal Law: A Normative Viewpoint

Authors

Guy Ben-David

Document Type

Article

Abstract

Recognizing the cultural background of a defendant who belongs to a minority culture is known as “cultural defense,” meaning that the minority member’s cultural background is accepted as a form of “defense” in a criminal trial. In general, the term “defense” is not only applicable in the functional sense as a formal defense against criminal liability, but rather can be applied in its literal linguistic sense, meaning that the defendant’s cultural background may grant them different types of special considerations during the criminal procedure.

This article aims to examine several legal models for the recognition of the cultural background of defendants belonging to minority groups during the criminal procedure. The first chapter (constituting the foundation for the discussion of the proposed legal models in the second chapter) discusses the justification for considering a defendant’s culture during the criminal process, including discussion of the principle of culpability, the doctrine of equality, the right to culture, and the promotion of pluralism in criminal law. The second chapter examines four possible models for the recognition of a defendant’s culture in a criminal trial: the “complete cultural defense model,” the “integrative model,” the “punishment model,” and the “disregarding model.” Although the last model advocates that there should be no recognition of the defendant’s culture during a criminal trial, the common denominator of the other three models is that they all recognize the defendant’s culture, at different stages of the criminal trial. The “complete cultural defense model” recognizes the defendant’s culture as an additional formal defense against criminal liability; the “integrated model” recognizes the inclusion of cultural arguments as part of the existing set of defenses against criminal liability, and the “punishment model” recognizes the defendant’s culture as a mitigating factor in sentencing. Examination of the disadvantages and advantages of each model leads to the conclusion that the solution for the thesis discussed in this article necessitates the synthesis of several models to form a new “relative normative model.”

Recommended Citation

Guy Ben-David, Legal Models For The Recognition Of Cultural Arguments In Criminal Law: A Normative Viewpoint, 2 U. MIA Race & Soc. Just. L. Rev. 1 (2012)
Available at: https://repository.law.miami.edu/umrsjlr/vol2/iss1/3