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Criminal Law and Cultural Diversity$
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Will Kymlicka, Claes Lernestedt, and Matt Matravers

Print publication date: 2014

Print ISBN-13: 9780199676590

Published to Oxford Scholarship Online: June 2014

DOI: 10.1093/acprof:oso/9780199676590.001.0001

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The Cultural Defense

The Cultural Defense

Reflections in Light of the Model Penal Code and the Religious Freedom Restoration Act

Chapter:
(p.153) 8 The Cultural Defense
Source:
Criminal Law and Cultural Diversity
Author(s):

Kent Greenawalt

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199676590.003.0008

The chapter examines the most ambitious attempt in the United States to draft a systematic criminal code—the influential Model Penal Code, and its commentaries—to see what mention is made of, and what room might exist for, cultural factors within it. The Code pays little attention to cultural factors. However, there is room for such factors; the question is how best to accommodate them. The chapter considers both the idea of a general privilege for cultural practice along the lines of the Religious Freedom Restoration Act, and the clarification and expansion of existing defenses. It concludes that the latter is more promising as it does not require judges to evaluate the authenticity of cultural claims.

Keywords:   culture, cultural defense, defenses, Model Penal Code, Religious Freedom Restoration Act

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