The Devlin model of the relationship between law and culture is . criminal law, for example, there has been fierce and ongoing debate. B. Law as Constitutive of Culture and Social Relations. III. . Influence ofMalinowski's Crime and Custom in Savage Society, 27 LAw & Soc. INQUIRY PDF | CULTURE AND CRIME The relationship between culture and crime is class delinquency, Journal of Criminal Law, Criminology and Police Science, vol.
With the increase of colonial power, a set of state courts was developed in order to allow the enforcement of Western laws for Europeans. African courts, especially in rural areas, were instead charged with the enforcement of indigenous precolonial law. This resulted in the creation of a dual system, one for the colonizers and one for the colonized, and it marked the beginning of a policy of legal pluralism that in many cases survives until now.
Postcolonial countries are still struggling to reconcile this dual system and to decide which law has to be applied in which courts. In many former colonies, the partition between official legislation enforced by state institutions and customary norms adopted by informal courts can still be found today and usually reflects a division between urban and rural areas.
Here, state institutions are often weak or nonexistent, and the organization of the population e. This is not only the case in colonized territories but also in post-conflict societies where both accountability and reconciliation are needed.
Recently, governmental and non-governmental organizations have promoted the development of alternative and informal mechanisms as part of a grassroots and more informal approach to justice in order to facilitate access to justice, conciliation, and local control Jahan, ; Merry, ; Sullo, The situation is even more complicated in countries, such as Togo or Uganda, in which several colonial administrations German, French, British, etc.
Here the postcolonial scenario is even more fragmented. State law consists of several layers of different Western legislation, which contributed to shape, and nowadays interact with the customary law of the colonized territory.
Immigration After the Second World War A third factor of cultural diversity in contemporary societies is the phenomenon of immigration. Contemporary international migration is unprecedented to what concerns its scale, character, and intensity Orgad, On the global level, the number of migrants has increased steadily in the last decades and has doubled or even tripled in developed countries such as the United States and Europe.
The so-called European migration crisis has led to an escalation in the increase of third country nationals in Europe, which became the destination for millions of migrants, refugees, and asylum seekers arriving to Southern European countries through the Mediterranean and the Balkan routes. Eurostat estimates that as of January 1,the non-EU citizens living in the 28 European states were Also, the character of migration somehow changed in the last century.
During the 19th and the beginning of the 20th centuries, migration flows were mainly restricted to the Western world typically, although not only, from Europe to North America and consisted of labor migrants who moved to another country usually for a limited period of time Orgad, Former colonial powers, for instance France and the United Kingdom, started receiving immigrants from their previous colonies, while Northern European countries recruited labor forces from Southern Europe and later on Eastern Europe.
Next to more traditional labor migrants, both asylum seeking and family reunification play a major role in this process. The intensity of contemporary migration is also remarkable. The pace at which migrants are arriving in Europe is rapidly changing demographic trends in these countries.
Western population and the total fertility rate in Western countries are declining, and in many European cities the growth of the migrant population is faster than that of the non-migrant population Orgad, Nation-states used to rely on a strong concept of sovereignty exercised through the instrument of citizenship, the only relevant criterion of affiliation.
All other identity collective dimensions, such as ethnicity or religion, were meant to fade in front of a universal idea of the right-bearing individual. The traditional conception of citizenship, based on the belonging to a nation-state was juxtaposed to a new idea of multiple belonging and collective identity. The perceived threat to Western liberal values and the revival of national identities have led to a retreat from multiculturalism and to the rise of nationalist movements Algan et al.
Clashes between minority and majority groups are framed in human rights terms and become particularly heated in the area of criminal law. Violence against women and children such as female genital mutilations, forced marriages, sexual and domestic violence, etc.
The plurality of normativities to which members of minority groups are subjected is perceived to threaten an ideal universal conception of rights and principles such as equality, freedom, justice, and autonomy, while the claims for jurisdictional autonomy coming from minority groups challenge the value-imposing function of criminal law and fundamental principles such as the rule of law and the monopoly of the state over the use of violence.
The Relationship Between Culture and Crime In some ways, all crime is related to or influenced by culture. However, in the last few years, the attention of the international community and of Western liberal democracies has increasingly focused on the relationship between crime and culture and especially of certain cultural traditions. In the last few decades Europe has witnessed the arrival of flows of Muslim immigrants that have revitalized the debate on religion.
While in the past, religiosity was connected to the idea of law-abiding citizens, nowadays religion, especially Islam, is often associated with violence. In this discourse religion and culture have been used interchangeably, and the latter has often provided an alternative to avoid discussing sensitive issues such as freedom of religion.
Other reasons have contributed to associate culture with crime; among those, two are worth mentioning: Human Rights and the Right to Culture The place occupied by culture within the human rights discourse is highly debated. While initially the recognition of culture and cultural differences was seen as an obstacle for the pursuit of universal individual human rights, later on the supporters of cultural relativism reversed this opposition.
During the 20th century, many international instruments started recognizing the value of cultural features and protecting them, at first in the form of individual rights, later on also under the category of group collective rights. Today, the right to culture is enshrined in many international human rights documents see, among others, article 27 of the Universal Declaration of Human Rights; article 15 of the International Covenant on Economic, Social and Cultural Rights; and article 27 of the International Covenant on Civil and Political Rights.
It underlines the value of cultural diversity and cultural pluralism for democratic societies and fosters the implementation of cultural rights as an integral part of human rights. Of course, being the right to culture and to cultural diversity fully recognized as a fundamental right, it is also subject to the limits, which derive from the universal, indivisible, and interdependent character of human rights.
Cultural Influence On Crime
Criminological Theories Investigating the Role of Culture in Crime During the first half of the 20th century, the concept of culture became central also to another field of study, that of sociology and, in particular, of criminology.
The interaction between cultural and criminal practices was at the heart of several criminological theories, which developed between the s and the s, such as the culture conflict theory and subcultural theories. These theories saw crime as a collective behavior, resulting from the adherence to a sub cultural group, different from the dominant one.
Drawing from cultural anthropology studies, Sellin defines conduct norms as a product of social life, aimed at protecting the social values of a group.
It might happen that one specific life situation is simultaneously regulated by a plurality of conduct norms deriving from the different social groups of which an individual is a member and that these norms fail to agree with each other.
If, however, the rule infringed coincides with a criminal norm in force in the dominant society, this deviant behavior amounts to crime Sellin, Sellin further distinguishes between what he calls primary and secondary conflicts. Primary conflicts occur when the norms of two different cultures or cultural codes clash. They may arise when two different codes regulate two contiguous areas; when the law of one group is extended to the territory of another group as in the case of indigenous peoples or colonized territories ; or, finally, when members of one cultural group migrate to another group.
Secondary conflicts characterize, among others, the behavior of second-generation migrants. These individuals are often caught between two or more cultures, and their behavior is therefore influenced by different normative orders.
While receiving a certain education within their families, they are at least partially acculturated with the norms of the host society. The Chicago School and Subcultural Theories Subcultural theories were developed in the context of the Chicago School of Sociology, which since the beginning of the s focused on the study of urban sociology, in particular of immigration and minority communities.
Subcultural theories explain crime as a collective phenomenon, resulting from the adherence to values and norms, which are different from those of the dominant society. In situations of marginalization from the mainstream society, individuals bond together and develop their own norms, beliefs, and symbols, creating new identities and ways of life.
The frustration resulting from this failure brings them to a refusal of the values of the middle class and pushes them toward subcultures, where they can aim at achieving success and status by committing crime.
According to Miller, members of subcultures conform to a different set of values, which are different from and not influenced by those of the middle class. These lower-class values include, among others, toughness, smartness, and autonomy and are often demonstrated through the commission of crime Adler et al. Behaviors Resulting From the Influence of Cultural and Subcultural Values Situations in which individuals commit acts that are influenced by the cultural norms of the minority group of which they are part but are contrary to the criminal laws of the dominant society have been named by certain doctrine as cultural offenses or culturally motivated crimes.
According to Jeroen van Broeck a cultural offense is an: That same act is nevertheless, within the cultural group of the offender, condoned, accepted as normal behaviour and approved or even endorsed and promoted in the given situation. The examples that follow might help identifying those behaviors that often have been labeled by the doctrine as cultural offenses. Examples of Behaviors The dynamic character of cultures and traditions and the difficulties encountered in identifying cases in which a cultural element is crucial in the offense make it hard, if not impossible, to crystallize all possible conducts giving rise to a cultural clash amounting to crime in a given state.
Others, instead, have been formalized as new and specific offenses with the aim of recognizing the specificity of these crimes and their connection with a specific cultural tradition in order to provide better protection for victims. These practices have been the object of international documents and conventions aimed at the protection of women and children and have been introduced as specific offenses in the criminal codes of many countries. The most known is the crime of female genital mutilation FGMwhich includes clitoridectomy, excision, infibulation, and any other harmful procedure to female genitalia that is performed for non-medical purposes World Health Organization, This ritual is practiced in many areas of Africa, the Middle East, and Asia and among immigrant communities in Europe and North America.
It is usually performed on young girls but sometimes also on adult women and is deemed to ensure their virginity until marriage and her fidelity afterward. It becomes also a sign of cultural identity and a requirement for community membership World Health Organization, This practice has formed the object of several international resolutions and recommendations and has been introduced in many national criminal codes as a specific offense.
A similar discussion regarding the possibility of making male circumcision a crime was held in the last few years in some European countries. So far, no country has criminalized circumcision, which however remains punishable under provisions incriminating bodily harm.
In certain countries, such as Germany, the willingness to shield certain religious groups from punishment has brought to the introduction of a justification for the practice of circumcision grounded on the right to parental care and custody and on freedom of religion. Forced Marriage Another practice, which has recently been at the center of national and international human rights strategies and has been criminalized by several countries as a specific offense is that of forced marriage.
Crime, Diversity, Culture, and Cultural Defense - Oxford Research Encyclopedia of Criminology
This practice is closely linked to the idea of honor governing certain societies, but it is also influenced by economic reasons such as the protection of family assets and by issues related to migration e.
Forced marriages can also be linked to other forms of violence perpetrated before the marriage by the parents domestic violence, segregation, abduction, etc.
- Crime, Diversity, Culture, and Cultural Defense
Honor-Based Violence Also connected to the idea of honor and the related concept of shame is so-called honor-based violence. In these patriarchal societies, the code of honor reproduces the status of a family or an entire group and relies largely on the sexuality of female family or group members. When the honor of a group is breached or is perceived to have been breached and shame is brought on that group, a reaction is needed in order to re-establish the status quo ante.
A variety of crimes can be committed in the attempt to prevent or avenge a loss of honor. The most serious form of honor crime is homicide, so-called honor killing, usually perpetrated toward girls rarely men who are perceived to have brought shame on the family with their immoral behavior.
Another form of murder related to the idea of honor is the one perpetrated in the context of a blood feud. Blood feuds usually arise due to quarrels over land or over women and can last years or even decades.
Other crimes, often committed in the name of honor and tradition, are, among others, sex-selective abortion, female infanticide, and forced abortion for cases of pre-marital or extra-marital pregnancy. A different conception of honor, not necessarily linked to sexuality but more to moral integrity and respect, can be at the basis of other types of violence, including murder. This is the case of reactions to certain insults whose seriousness can only be understood by having a look at the cultural context in which they are exchanged Basile, Other Offenses Other forms of killings are related to old superstitions.
It is, for example, the case of witch killing and the killing of albinos, especially diffused in certain African regions or to rituals such as the Japanese oyaku shinju, parent-child suicide as a reaction to shame Carstens, ; Renteln, An economic change within a society, China being an example, is associated with violence and elevated rates of murder.
What is interesting about this example is that these observed changes can be seen within the same culture, rather than comparing the crime rates of two different cultures.
The shift from a classless socialist society to a competitive free market economy comparable to what is seen in America today, has indirectly driven crime rates substantially higher: Similar to America, China does not provide adequate legal opportunities to reach this newly promoted goal of monetary success, and so people use what they have available to them, legal or not.
What was once a strictly collectivistic culture with socialist ideals, is now adopting an individualistic mindset; taking care of the group is less important than taking care of themselves. Just as suggested earlier, once one of the four basic social institutions begins to dominate, which in this case is the economy, the others begin to have less influence on day-to-day activities, and what was once black and white is now a gray area.
Japan is often used as an example of a collectivist culture with low rates of crime. Although not completely considered a free market economy, Japan does employ some of the same principles, and is still able to keep crime rates relatively low. Many researchers have suggested that collectivism is the main reason for the low rates of criminal behavior.
In America, individuality is emphasized more so than the group that one may belong to. The same cannot be said for the Japanese culture. Japanese cultural values contrast sharply with those in America. These differences can be seen in all aspects of life and across all ages, beginning at birth with parental practices, as well as within school curriculum, social relations, and in the workplace. In Japan, uchi is a term used to describe the group one belongs to, along with any rules that must be followed to remain in the group.
Soto, refers to the out group, and less attention is spent on these individuals. While becoming more popular in America in recent years, in Japan it is not uncommon to see the passengers of an entire train or bus, with their headphones or earbuds in — no eye contact.
This just goes to show how uninmportant and insignificant outgroup social relations are viewed in Japanese society. Effort is placed on instilling discipline into their children, as self-control is one of the most highly valued characteristics one can possess in Japan.
This is just one of many differences in how children are raised in a collectivistic culture. Children are taught and expected to depend on their families, much more so than in America. The way punishment is carried out is even very different. For example, individualistic cultures often threaten bad behavior with groundings, being forced to stay in the house. In Japan, the opposite is true; parents threaten to force their children out of the home. In school, critical thinkers are often frowned upon and only rote memorization is seen as being useful.
Shared responsibility is taught; when one student does poorly, the others may also be scolded, helping build group cohesion. The workplace brings people a sense of pride, and may even be considered an extended family. Companies offer lifetime employment opportunities, with retirement, benefits, automatic raises, medical care, housing, and recreational activities.
Cultural Influence On Crime | Criminal Defense Attorney | Psychology of Law And Criminal Behavior
Workers know what to expect, and are given a sense of security. Most of their friends are from work, and most if not all of their social activities revolve around the workplace; much of their self-esteem is based on their work environment. The social institutions believed to be lacking in free-market economies, the family, the educational system, and social policies, actually dominate in Japan. Remember, these social institutions are responsible for keeping crime in check.
This is not to say that Japan and other collectivistic cultures are completely crime-free, just that the group mentality is stronger. One example in which the strong influence of the group may actually be detrimental to crime prevention: In this case, the group members are actually thought to be more likely to stick together and offend themselves. The goal of this post was to educate the reader on how culture plays a much larger role in the development of criminal behavior than someone may care to acknowledge.
The southern culture of violence theory demonstrates the role a cultural belief system can play in society, even across many generations and hundreds of years later. The institutional-anomie theory is often criticized in the fact that it is not valid across cultures, which is why China was used as an example in support of the theory. It is interesting to see how the switch to a free-market economy has brought with it many cultural changes all the way down to the individual level, as well as some significant increases in rates of crime.
The reasoning behind variations in crime rates across cultures is still not well understood, other than the fact that there seem to be some well-defined differences in individualistic and collectivistic cultures.
Future research should focus on why these cultural differences lead to higher rates of crime.