Volume 1 issue 2 October 2013
The Role of Morality in Cultural Defence Cases: Insights From a Dworkinian AnalysisJames C Fisher
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Much
academic and judicial energy continue to be expended over the role of culture
in the law. The most contentious debate considers whether and to what extent a
criminal defendant should be able to rely on his cultural background in his
defence. This article draws on concepts from the fields of jurisprudence,
socio-legal and cultural studies to identify and to probe the role of morality
in this academic debate and in real-world judicial decisions. In doing so, this
article analyses the ‘cultural defence’ debate in light of the revolutionary theory
of adjudication promulgated by Professor Ronald Dworkin. Of all the competing
jurisprudential theories, his arguably devotes the most attention to the
importance of morality in adjudication.
The resulting analysis is then applied to a variety of prominent cases from various English-speaking legal jurisdictions in order to illuminate the hidden morality at work in judicial reasoning regarding the exculpatory power of a defendant’s culture. This reveals a hierarchical structure of interacting moral norms, indicating both a general enthusiasm for tolerance and widely varying moral responses to specific foreign cultural norms. By appreciating the mechanics of judicial reasoning in such cases, we can seek a principled and consistent response to invocations of the cultural defence. |
