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Culture, like race, class, gender, sexual orientation and wealth is one of many ways in which the law is not neutral. Indeed, culture is a source of law. Yet, as traditional legal positivists have taught us, the law or legal doctrine can prove to be more powerful than culture, often outlasting it. The “mirror image” theory states that the laws of a particular locale reflect the culture of that locale. The law merely serves as enforcement of the common decency, propriety and morality of that culture. Not only is this understanding appealingly simple, it is often invoked by judges and legislators who see the law and their roles in shaping the law as nothing more than an expression of the common sense and morality of their communities. However, as leading scholars in this area explain, this simplistic mirror image of law and culture is not true.

First, the law does not merely enforce cultural norms; indeed, the law frequently creates new norms which may be contrary to cultural tendencies. Second, culture itself is not stable, coherent, or singular, and thus its malleability challenges the law. Within any culture, there are differences among subgroups, inconsistency and conflict between tenets, variance in adherence, and ever constant change. In countries harboring a multitude of cultures, like the United States, this second complication is even more palpable. Given multiple cultures, the likelihood of differences in values and moral sensibilities is multiplied. Whose norms should the law reflect? Which values should the law pursue? For those countries that regard their diversity as an asset, the challenge is how to balance respect for cultural heterogeneity against the need to enforce a distinctive and hegemonic set of cultural values.

This Essay focuses on the interplay between culture and the substantive criminal law. The criminal law has two basic functions: it serves as an expression of moral condemnation, and it determines formal punishment by the state. Given the importance of these functions, it is imperative that the complex interplay between culture and the criminal law is brought to light and understood, especially in multi-cultural jurisdictions where a single criminal law is brought to bear upon members of numerous, varying cultures.

The relationship between culture and the criminal law reflects the mirror image theory as well as two complications identified by Robert Post. For example, the laws against homicide articulate that in the judgment of most, if not all cultures, killing another human being, under most circumstances, is wrongful moral conduct and is therefore, a crime. Such laws are a clear example of the mirror image theory. On the other end of the spectrum, other criminal offenses such as marijuana possession do not necessarily reflect a societal judgment against low level drug use, but instead represent the need to maintain a distinction between illicit and legal drugs and the need to deter the abuse of even more dangerous drugs. This is the first complication suggested by Post at work. Such drug offenses aspire to create norms, as opposed to reflecting already existing norms, and are very controversial. This debate about whether rules of liability should be fashioned to achieve the instrumental goal of deterrence or instead to reflect the moral judgment of the community in criminal law is “fierce and ongoing.” The second complication of differences in norms and values due to the existence of many cultures and intra-cultural conflict is also seen in criminal law. It usually arises in the context of a defendant who is charged with a crime but then defends his act as an expression of his culture. Whether the criminal law should accept a claim of culture as a defense has been the subject of numerous academic articles; however, very few, if any, jurisdictions have formally considered the issue.

In this Essay, Prof. Chiu argues that several familiar doctrines in American criminal law are better understood as cultural constructs. These fundamental doctrines reflect the values of the dominant culture in the United States. They are: (1) the rejection of the rule of retreat in deadly self-defense; (2) the defense of habitation; and (3) the defense against forcible rape. These defense doctrines demonstrate simple mirror reflection as well as Post's second complication of changes in culture. By viewing these established criminal defenses specifically as constructs of the dominant culture, this Essay puts forth a selective mirror image theory. The criminal law is yet another source of power for the segment of the population that is in control. Thus, the values expressed in the substantive criminal law are those held by that segment. This view of the law is an important place to begin our look at culture and the criminal law. It achieves two important ends. First, the Essay dispels the myth that culture does not exist or belong in the substantive criminal law. Those who worry that a cultural defense will inject culture where there is no culture have no reason to worry. The current criminal law is already infused with culture. Second, this Essay establishes that it is not just any culture that exists in the criminal law. Rather, it is only the dominant culture that exists in American criminal law. These foundational perspectives about substantive criminal law are critical to understand and accept before going further in the study of the relationship between criminal law and culture. Part II of this Essay explains two concepts that are important to these foundational perspectives. The first discusses the meaning of dominant culture, and the second explores the connection between culture and motive in the criminal law. Parts III, IV, and V then explore in detail how the rejection of the rule of retreat, the defense of habitation and the defense against forcible rape are expressions of the dominant culture. Finally, Part VI features some brief conclusory remarks.