Journal of Legal Pluralism and Unofficial Law

(1999) JLP 44: 127-161





William I. Torry




Litigants who blame offenses they commit on cultural influences, and appeal for clemency on that account, invoke a culture defense. The defense creates a scene for intense debate over core Western values and governing conceptions of agency. Multiculturalist and feminist agendas, retributive and utilitarian theories of punishment, and free-will and deterministic accounts of responsible action do battle under the culture defense umbrella. This paper finds controversy created by issues on which legal analysts generally agree. By the light of conventional wisdom, a culture defense is meant for immigrant newcomers or indigenous peoples, engages criminal rather than civil claims, necessarily attaches to de jure defenses, and requires judicial authorization. Rejecting all such preconceptions, the analysis bears down primarily on a dogma that unassimilated law-breakers alone can claim a culture defense. Jurists, it suggests, would lift restrictions on whom the defense should benefit if they wrestled with this strategy's core premise conveyed in the culture defendant's stock declaration, "My culture made me do it". By clarifying the psychological and cultural entailments of this premise of cultural dictation, the analysis liberalizes unwarranted curbs on culture defense eligibility. Moreover, it fits several unconnected areas of case law into a common reference frame, thereby expanding the scope of the culture defense, and, down another road, attempts to give multicultural research on individual responsibility a more psychological face.