Culture in Our Midst

University of Florida Journal of Law & Public Policy, Vol. 17, pp. 231-62, 2006

St. John's Legal Studies Research Paper No. 06-0048

33 Pages Posted: 11 Aug 2006  

Elaine Chiu

St. John's University - School of Law

Abstract

This paper seeks to rebut the claim that the substantive criminal law is a-cultural. Far too often, decision-makers in the criminal justice system disregard the evidence and defenses raised by individuals from minority cultures on the grounds that such evidence and claims are irrelevant to the determination of guilt. What they fail to recognize is that the definitions of elements, of offenses and of defenses are all constructs of the dominant Anglo-American culture. This paper examines in detail three existing doctrines in substantive criminal law to demonstrate this point: the deadly defense of habitation, the growing rejection of the rule of retreat in deadly self-defense and the deadly defense against forcible rape. Failure to admit the cultural origins of the penal law results in the dangerous imposition of values of the dominant culture upon all individuals under the guise of universal legal norms. It is only in recognizing the substantial influence of the dominant culture on the substance of our criminal laws that we can begin to craft a more fair and just law for a multicultural society.

Suggested Citation

Chiu, Elaine, Culture in Our Midst. University of Florida Journal of Law & Public Policy, Vol. 17, pp. 231-62, 2006; St. John's Legal Studies Research Paper No. 06-0048. Available at SSRN: https://ssrn.com/abstract=923624

Elaine Chiu (Contact Author)

St. John's University - School of Law ( email )

8000 Utopia Parkway
Jamaica, NY 11439
United States

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