4 - Multiculturalism and Criminal Law: Between the Universal and the Particular

Summary

How may cultural diversity be accommodated in the structure of criminal law? This is not a new question. However, in light of multicultural challenges, the debate concerning cultural diversity has been gaining space in the law, stressing the tension between universalism and particularism in criminal law. The multicultural theory brings to light underlying issues in criminal law and questions the possibilities and limits of a juridical consideration of cultural diversity.

‘When in Rome, do as the Romans do’ is the expression often recalled to illustrate the prevalent approach regarding the cultural practices of the others in criminal law. The approaches that defy this ‘when in Rome’ perspective represent an attempt to overcome the infl exibility of modern criminal law, which is linked to the Enlightenment notion of the nation-state and the liberal logic of universal individualism. It is precisely the idea of universalism that is challenged by multiculturalism, which questions to what point universal values are simply a refl exion of the majority culture.

The compromise between particular pretensions derived from the defendant's cultural allegiances and the idea of universal ascription of rules in a liberal democratic state is not a straightforward objective. In cases involving cultural arguments, general rules are confronted by singular elements, especially when the recognition of cultural evidences challenges the fundamental rights of others. In the end, the main question is how to balance punishment and individual justice without weakening the doctrine of liberty, certainty of rights and deterrence, nor, as a consequence, citizens’ guarantees.

The goal of this chapter is to explore how the tension between the universal and the particular in criminal law is put into evidence in multicultural societies. I do not intend to give all answers to this problem, but rather to demonstrate the importance for the jurist to acknowledge these fundamental dynamics.

In this context, it is essential to go beyond commonsensical arguments about multiculturalism and culture. We cannot take for granted the idea of cultural identity and the infl uence of culture on human behaviour. For this purpose, the study of anthropology and political theory is the way to overcome outdated ideas that are still present in analyses about multiculturalism and cultural defence.