Multicultural Jurisprudence
| DOI | 10.1177/0964663911421950 |
| Published date | 01 December 2011 |
| Date | 01 December 2011 |
| Subject Matter | Book reviews |
Social & Legal Studies
20(4) 557–572
Book reviews
ª The Author(s) 2011
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DOI: 10.1177/0964663911421950
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MARIE-CLAIRE FOBLETS AND ALISON DUNDES RENTELN (eds), Multicultural
Jurisprudence: Comparative Perspectives on the Cultural Defense. Portland, OR and Oxford:
Hart Publishing, 2009, 378 pp., ISBN 9781841138961, £22 (pbk).
This is a multidisciplinary collection of papers presented at a 2005 colloquium. The
editors concede a disagreement amongst contributors about the meaning, nature and role
of a ‘culture defence’, and whether its relevance is limited to criminal settings (p. 2).
They emphasize that this is the ‘first stage’ of research, offering two propositions:
(1) public officials ought to be cautious when considering culture given that non-
expert legal actors are often the ones deploying the defence; and (2) some elements of
culture do not deserve legal protection, but the articulation of allowable uses and bound-
aries is problematic, particularly in cases not involving loss of life. The contributors
engage with these questions to varying degrees over an Introduction and 14 chapters,
divided into four Parts and a Conclusion.
It is claimed that the three chapters in Part I consider theoretical perspectives. In Chap-
ter 1, Woodman notes that culture is a controversial term, the boundaries of which are
unclear, before considering some difficulties relating to the function of culture that can
be invoked (pp. 11–13). He argues that, although England is a multicultural country
which has legally recognized culture and permitted otherwise forbidden practices based
on culture, it has not developed a distinct cultural defence (p. 30). Rather, we might wit-
ness the expansion of existing defences such as mistake, duress, self-defence and provo-
cation (pp. 18–29). Woodman concludes that there are theoretical and practical
difficulties in conveying information about a culture to persons outside that culture, espe-
cially in formal court settings, and it is unlikely that the English common law will develop
a distinct defence.
In Chapter 2, Amirthalingam emphasizes that an accused from a cultural minority may
be disadvantaged when tried for a crime defined by a dominant culture. He explores culp-
ability, focusing largely on Australia. After discussing the effect of culture on ‘the reason-
able person’ (pp. 48–49), he considers provocation, emphasizing the importance of the
distinction between justification and excuse in developing defensible approaches to the
cultural defence in the criminal context. Like Woodman, he argues that a preferable
approach is to encourage culturally sensitive interpretations and applications of existing
defences (as was done with battered woman syndrome); distinct cultural defences create
legal plurality which could lead to fragmentation that threatens the emotional security of
558
Social & Legal Studies 20(4)
both dominant and minority cultures by accentuating differences and creating alienation
and disharmony (p. 43).
In Chapter 3, Renteln makes a short but principled argument in favour of the cultural
defence, interpreted generally as the judicial recognition of the relevance of cultural tradi-
tions and practices in influencing the...
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