Is There Room for “Culture” in the Courtroom?
Critics of the cultural defense argue that assessing the significance of someone’s “culture” is beyond the capacity of courts, and will lead to arbitrary results. This chapter examines family law to shed light on this concern. There has been considerable experience in the use of cultural evidence in family law court cases. The chapter advocates a “culture-demystifying” approach that permits the court to treat cultural factors as one of many relevant elements in its adjudications. This is contrasted with a “culture-blindness” approach that permits no formal place for cultural considerations, and a “culture-override” approach in which culture is treated as determinative. Through a close examination of family law cases, principles are identified that might be applicable to criminal law.
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