The intersection of law and culture is far more complex than it appear. Culture being the beliefs and social behaviour to specific communities and law believed to regulates what behaviour is acceptable and socially right, it is appropriate to assume that both are related in numerous ways. Although to what extent should culture be integrated into law ? This essay will focus on the example of Australia. Australian law was founded, based on the British common law, imposing on the already existing custom of indigenous aboriginals. Additionally with the rise of globalisation, diversities of cultures and ethnic groups immigrated to Australia, leading the country to multiculturalism. In compliance to human rights and International law, Australia is …show more content…
In the history of Australia, in order to impose over the customary laws of the Indigenous, the British needed a valuable excuse and claimed that they had no rational system of law. This leads to the advancement of legal positivism which imposed on methods of ruling, which is a shift away from the moral standards of society to law enactment. With the increase of immigration in Australia, the diversity in culture start to cause numerous problems within criminal justice. (Golding 2002 : 147) Australia is said to have migrants from over 200 different countries (Department of Foreign Affairs and Trade). This means that under international law and the human rights, these ethnicities ought to get some recognitions from the law, within the boundaries of tolerance. (Raz : 1998) However Australia follow shared values such as egalitarian and respect of the individual belief. In relation to “Cultural Defence” in a criminal case, this would mean that the defendant seek a different treatment. In the ARLC 57 report of multiculturalism and the law, Australia already take into considerations the varieties of cultures within the country. Obedience to the law might be complicated depending on each individual, and might result in the breach of cultural tradition. However the Act clearly state that in the Common law system, unawareness of the law will not be …show more content…
Critical race theories approach the way different race can be moderated by the law and how people can have different experience of the law because of their race. When evoking cultural defence in a trial, it often means that a crime could potentially be excused on the basis that the act was purely because of cultural traditions. Australia can be said to be divided into two groups, the majority culture, knowns as the western culture, who would accept the terms of the common law system, and the minority cultures , which are migrants who come to Australia for various reason and believe in other traditions. Paul Magnarella argues ; “ Cultural defence maintains that persons socialised in a minority or foreign culture, who regularly conduct themselves in accordance with their own culture’s norms, should not be held fully accountable for conduct that violates official law, if that conduct conforms to prescription of their own culture.” (Magnarella in Phillips : 2003 : 512) This, therefore means that with the compliance of minority cultures to the Australian laws, might have the consequences of them breaching their own culture. As mentioned earlier, Australian laws do take this into consideration and allowed minority group to follow their traditions to the extent that it does not endanger other individuals lives. However allowing cultural defence would result for them to have a unfair