Culture in the Legal System
Recent years have witnessed a growing debate on the place of culture in the legal system. Legal practitio- ners and theorists have argued the pros and cons of using culture as a defense in criminal cases.1,2 The value of attending to culture includes having a better understanding of the origins of behavior and the level of volition and intent in the accused individual’s be- havior. At a wider societal level, acknowledging cul- tural differences in law can contribute to building a pluralistic society that can accommodate some dif- ferences in values that are important to cultural com- munities.3 This is evident, for example, in efforts to develop customary law and sentencing circles among indigenous peoples that respect traditional values of harmony and connectedness.4,5
Those supporting the use of culture as a defense argue that is it intrinsically unfair to judge someone exclusively by the rules and values of a society that he or she does not know. Moreover, since culture shapes personal identity, emotional responses, and patterns of reasoning, it can be expected to influence motivation and intent in situations involving criminal actions. Following this line of argument, in regard to considerations of individual volition and intent be- ing important for determining legal culpability, cultural considerations become pertinent in an equitable justice system.
Against this pluralistic view, critics argue that al- lowing culture as a defense is dangerous. It will un- dermine the fairness of the justice system by allowing inconsistent or arbitrary standards to be applied; crimes that are consistent with local cultural conventions will go unpunished; and, ultimately, whole groups will be stigmatized because they are not being held to the same moral and juridical standards as the rest of society. Advocates of universal human rights note the importance of clearly articulated standards to which every individual must adhere and by which everyone is judged.6,7
This ongoing legal debate in multicultural societ- ies is reflected in the field of forensic psychiatry, where consultants may be asked to supplement their usual psychiatric assessment with attention to social and cultural factors that can explain or contextualize the behavior of individuals accused of crimes. Boe- hnlein and colleagues8 noted the complexities of this area and suggested that applying cultural consider- ations to the process of sentencing may be less con- tentious than introducing culture as a defense against a crime. The determination of whether someone com- mitted the crime is then separated from questions of their level of intent and the appropriate punishment. Recognition of the contribution of culture also may help in the determination of what interventions should be employed to bring about rehabilitation.