Indigenous peoples and immigrants: the multicultural challenge of criminal law

Fernández Ruiz, José Manuel (2018) Indigenous peoples and immigrants: the multicultural challenge of criminal law. PhD thesis, University of Glasgow.

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This thesis is the conclusion of doctoral research that pursued to examine whether indigenous peoples’ demands for access to their cultural practices can be accommodated within criminal law. In a globalised context in which states become increasingly multicultural this question raises fear of social fragmentation and the anxiety for achieving unity. Certainly, Rwanda and Kosovo evidence that claims to access culturally diverse practices may lead to war or even genocide. The context of the thesis is a more benign form of response to these claims: accommodation. While accommodation in general has received great attention from scholars (Kymlicka 1989, Gutmann et al 1994, Tully 1995), within criminal law the only focus has been cultural defences (Renteln 2004, Kymlicka et al 2014). However, little research has been conducted to understand the broader implications of this phenomenon for both the accommodated and the accommodating. The research aims to shed light on these broader implications of accommodation by exploring it within criminal law. Certainly, the simplicity and individualised nature of cultural defence conceals what is at stake for both the accommodated and the accommodating. Specifically, it conceals how criminal law cannot be responsive to the claims of minorities because it seeks to maintain the practices of the constitutional order of which criminal law is part. The result is that the claims of indigenous peoples cannot be accommodated. In order to uncover these implications, the research employs social holism (Pettit 1998) to develop a broader understanding of criminal law as a socio-cultural practice, which enables an adequate description and assessment of the diversity of claims to recognition that minorities make to the state of which they are part. In broadening the view the claims of minorities become linked to their position within the constitutional order (Tully 1995), and then the question arises as to whether minorities have been unjustly excluded or included (Lindahl 2013) in that order, which may lead to recognise a new plurality of responses that the state and its criminal law should provide to them. By broadening the understanding of criminal law it is enabled an adequate framework for the assessment of the phenomenon of accommodation. Certainly, this is necessary for claims to access diverse cultural and social practices to be met with justice, for the state’s responses need to be sensitive to the diversity of claims put forward by minorities, without overlooking that the state as well need to access its particular social and cultural practices.

Item Type: Thesis (PhD)
Qualification Level: Doctoral
Keywords: criminal law, cultural defence, constitutionalism, indigenous peoples, immigrants, multiculturalism, social practice.
Subjects: K Law > K Law (General)
Colleges/Schools: College of Social Sciences > School of Law
Supervisor's Name: Farmer, Professor Lindsay and Christodoulidis, Professor Emilios
Date of Award: 2018
Depositing User: Mr jose manuel / JM fernandez
Unique ID: glathesis:2018-9107
Copyright: Copyright of this thesis is held by the author.
Date Deposited: 24 May 2018 07:37
Last Modified: 15 Jun 2018 14:03

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