MULTICULTURALISM AND CRIMINAL LAW: CRIMINAL RESPONSIBILITY AND INDIGENOUS PEOPLES IN BRAZIL

Abstract

How can cultural diversity be accommodated in the structure of criminal law? This is not a new question, but multicultural challenges keep bringing the debate concerning cultural diversity in criminal law to the forefront. Multiculturalism has been used in the theory and practice of law without a deeper reflection on the meaning of the term and its consequences in law. This thesis seeks to demonstrate how much that is accounted for under multiculturalism, or rather blamed on it, including deviations such as an excessive relativism, are derived from erroneous and reified notions of ethnic and religious identities, or from a romantic idea of nation. In criminal law, the prevalent approach has been to state the irrelevance of the cultural practices of the Others to criminal responsibility. Approaches that defy this perspective are attempts at overcoming the rigid characteristics of modern criminal law. In order to examine the criminal responsibility of indigenous peoples in Brazil, this work discusses the limits of accounting for cultural elements within criminal law. It interrogates essentialist views of culture and deterministic approaches to multiculturalism and the cultural defence. By exposing reified views in Brazil regarding criminal responsibility of indigenous peoples, the goal is to balance punishment and individual justice without weakening the doctrine of liberty, certainty of rights and deterrence and, as a consequence, citizens' guarantees.