VARIOUS KINDS OF CULTURAL DEFENCE IN THE CRIMINAL LAW

The article suggests a way to overcome the reluctance to grant a defence for culturally motivated non-compliance with the criminal law by recognising various kinds of cultural defences. Cultural defence as an excuse enables courts to both declare the expectation that the minority will adjust their practices to criminal law prohibitions by perceiving the culturally motivated non-compliance as wrong, and nonetheless excuse the defendant on the ground that the cultural motivation negates her culpability. Cultural defence as a justification conveys a respect for cultural autonomy by permitting the defendant to adhere to cultural practices despite its infringement of the criminal law prohibition. Classifying the cultural motivation as an offence modifier implies that the reasons for criminalisation do not apply to the cultural practice. The variety of cultural defences would have to be subject to a normative constraint for cases in which the cultural practice infringes upon the polity’s fundamental values.