Legal Silencing of Minority Legal Culture: The Case of Roma in Swedish Criminal Courts
| Published date | 01 December 2019 |
| DOI | 10.1177/0964663918810379 |
| Author | Ida Nafstad |
| Date | 01 December 2019 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2019, Vol. 28(6) 839–858
Legal Silencing of
ª The Author(s) 2018
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DOI: 10.1177/0964663918810379
The Case of Roma in
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Swedish Criminal Courts
Ida Nafstad
Lund University, Sweden
Abstract
The traditional Swedish monocentric and uniform legal model is challenged by an
increasingly diverse contemporary legal situation associated with the development of a
multicultural and pluralistic society. How Swedish criminal courts handle this in terms of
understanding and framing minority legal culture is addressed by looking into what role is
given to this culture in the courts’ construction of facts and in sentencing. A particularly
interesting case in this regard is the national minority Roma, seen as an example of a
Swedish group that brings other normative systems into the state legal system through
their distinct legal culture. Through an investigation of written verdicts, it is demon-
strated that accounts of Roma legal culture face ‘legal silencing’ by the court – it is either
not given significance or is given a form of attention that essentializes and alienates the
culture. An analysis into why this legal silence occurs and into the possibilities for taking
legal culture into account is provided. It is argued that there are structural barriers
hampering the courts from taking legal culture into account but also that these struc-
tures can be changed for betterment to ensure equality before the law and hence
legitimacy in a multicultural society.
Keywords
Cultural defense, equality before the law, legal pluralism, Roma legal culture, Swedish
criminal court, the juridical field
Corresponding author:
Ida Nafstad, Sociology of Law Department, Lund University, PO Box 42, Lund 22100, Sweden.
Email: ida.nafstad@soclaw.lu.se
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Social & Legal Studies 28(6)
Introduction
The Swedish legal model is historically and traditionally characterized as monocentric
and uniform and as closely connected with the nation-state. However, this legal identity
is being challenged by a contemporary legal situation of increasing diversity with the
development of a multicultural, globalized, and pluralistic society (Gustafsson, 2002).
Legal centralism, or a legal monocentric conception, is also challenged by a rising
awareness of legal diversity (Gustafsson, 2002), resulting in a growing recognition that
modern societies have to evaluate how, and to what extent, they should take different
religious, cultural, and traditional norms and values into account (Twining, 2000). The
Swedish criminal courts’ response to a diverse legal situation has not been uniform but
can rather be characterized as arbitrary and ad hoc (Lernestedt, 2006).1 This might
jeopardize the courts’ legitimacy.
A particularly interesting case in this regard is the Roma national minority, which is
seen as an example of a Swedish group(s) that brings other normative systems into the
state legal system through their own distinct legal culture. The social organization of
various Roma communities is connected to their norms and moral systems and to their
notions of social order and conflict resolution within the community when norms are
broken (Engebrigtsen and Lide´n, 2010; Marushiakova and Popov, 2007; Weyrauch and
Bell, 1997). Being part of a recognized national minority in Sweden, Roma culture and
traditions are entitled to distinct protection and facilitation by the state according to the
European Framework Convention for National Minorities (FCNM). The signatories to
the FCNM have a responsibility to both respect and create appropriate conditions for
national minorities to express, preserve, and develop their ethnic, cultural, linguistic, and
religious identities. The national minorities should be guaranteed the right to equality
before the law and to equal protection under the law.2 This means that Swedish Roma
have a specific claim to appropriate consideration of their ethnic, cultural, linguistic, and
religious identity also when acting as a party to a court case.
The FCNM is constructed to be a tool against discrimination and alienation of
national minorities who might have suffered discriminatory treatment historically
and contemporaneously. The Swedish Roma have a long history of being discrimi-
nated against and alienated from mainstream society in most areas of life – in
education, in the housing market, in the labor market, and in the criminal justice
system – and they have been subjected to negative stereotyping and hate crimes and
have met discrimination at both structural and institutional levels. They have expe-
rienced historical and general social, economic, and political exclusion and margin-
alization (Bra˚, 2008; Palosuo, 2008; Statens offentliga utredningar, 2010: 55;
Wigerfelt and Wigerfelt, 2015).
The overarching aim of this article is to produce knowledge about the Swedish
criminal courts’ understanding and framing of minority legal culture in cases with
minority victims and/or defendants and about the role given to this culture in the courts’
constructions of facts and in sentencing. On this basis, I set forth to find answers to what
kind of role, if any, Roma legal culture plays in the Swedish criminal courts’ assessments
of cases and how this relates to the broader social and legal significance of the position of
minority legal culture in the courts.
Nafstad
841
Knowledge of how the Roma and their legal culture is handled by the Swedish courts
is of importance both to this group specifically, in order to avoid further discriminatory
practices, and more generally to evaluate the capacity of the courts to absorb the chang-
ing structure of Swedish society toward a multicultural reality. It is furthermore relevant
to the courts’ legitimacy in terms of equality before the law. These issues also carry
wider geographical relevance, particularly when it comes to the developing transnational
legal reality emerging in the global North and its attendant discussions regarding cultural
defense. Northern Europe has become a transnational social space, with values, norms,
and laws transgressing state boundaries, and with emerging expressions of transnational
living law: ‘National law is under pressure from above, below, within and without’
(Hellum et al., 2011: 5). State legal systems do not easily adapt to changing societies,
but the notions of cultural defense offer technical solutions to the increasing multicul-
turalism seen within the existing structures and operations of criminal justice systems.
Minority Culture in the Court
Encounters between the Roma, their legal culture, and the criminal justice system have
not received scholarly attention in a Swedish context. Lernestedt (2006, 2014) has,
however, discussed the relevance and impact of cultural defense in a Swedish criminal
law context, calling for ‘principled and nuanced thinking regarding “cultural” issues’
(Lernestedt, 2014: 18) in a Swedish criminal law environment characterized by ‘legal
silence’. This latter concept will be discussed later in relation to my own material.
Internationally, the last decade has seen some research on the relationship between Roma
legal culture, international law, and state law. Newer studies on Roma legal culture have
discussed the role of international and human rights law and regulations for the right and
possibility to practice Roma law within the structure of the nation-state (Banach, 2002;
Cahn, 2010; Hoekema, 2005; Malik, 2014), and the European Court of Human Rights
has concluded that, due to the vulnerable position of the Roma, special consideration
should be given their needs and lifestyle, both in regulatory frameworks and in specific
cases (Connors v. United Kingdom, in Cahn, 2010: 114).
The notion of cultural defense, in general, has gained increased attention after Ren-
teln’s (2004) seminal book on the topic. It is typically argued that either the cultural
defense, on the basis of the courts’ cultural insensibility, is consistent with the existing
structure of criminal law or that one needs to rethink the whole structure of criminal law
in order to capture the significance of culture in people’s lives and actions. Critics of
taking a cultural defense into account have claimed that it will be no more than a means
to excuse unusual causes for illegal actions. Others see it as a breach of equality before
the law (see Kymlicka et al., 2014). The complex relationship between individual and
collective rights, particularly regarding the rights of women and children (Okin, 1999),
and culture being continuously challenged from within the group (Kymlicka et al.,
2014), has also been raised as a criticism against cultural defense. Some empirical
studies of court encounters between minority culture and criminal law, particularly
within a common law context, have found a legal silencing of minority culture (Renteln,
2004; Shah, 2005). Still, there is a dearth of research on the relations between multi-
cultural societies and criminal law (Kymlicka et al., 2014), but which Kymlicka et al.
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Social & Legal Studies 28(6)
(2014) have started to address and which this article also aims to help fill. The main focus
of Kymlicka et al. (2014) is on the courts’ evaluation of the blameworthiness of mino-
rities, and whether, and in which ways, a cultural defense is possible to invoke. They do
not, however, touch upon the issue of the courts’ evaluation of credibility or the framing
of minorities and their legal cultures.
The...
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