Group-differentiated rights: a challenge to penal law

Abstract

The liberal project of tolerating and accommodating the beliefs and practices of minority cultures and religions poses a serious challenge to the usual liberal understanding of penal law. Whatever accommodations may be available in other areas of the law, it is often thought that the penal law should be the same for everyone. This view has been challenged by advocates of “cultural defences”, who argue that truly equal treatment requires evidence concerning the cultural reasons for a person’s actions to be considered rather than ignored. Most advocates of some form of cultural defence have treated it as relevant to existing criminal law defences, or as a distinct excuse, rather than as a reason to vary the demands of the penal law or to exempt members of minority cultures from it. But the strongest and most persuasive liberal arguments for accommodating minority cultures imply that members of minority cultures may indeed be entitled to exemptions from penal law.Liberal arguments in favour of group-differentiated rights apply as much to the demands of penal law as to the demands of any other kind of law. So the argument for group- -differentiated rights appears to be inconsistent with the claim that there should be one penal law for all. There are (at least) three possible ways of resolving this inconsistency. First, one might give up the ideal of one penal law for all; second, one might seek an argument for exempting penal law from the demands of group-differentiated rights. In this paper, I explore a third possible resolution: the distinction between a core of penal law-call it “criminal law” strictly speaking – that does indeed apply to all and is not open to group-based differentiation and a periphery of penal law-call it “regulatory penal law” – that need not apply to all and can therefore be differentiated to accommodate group rights. Whether this resolution succeeds or not, the need to consider it shows that the problem of accommodating cultural diversity goes to the heart of what we mean by criminal law.