Fictions of Intention in the “Cultural Defense”

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Abstract

ABSTRACT  The “cultural defense” in criminal law presents anthropologists with an instance of culture being used as a particular sort of tool, in this case, a tool for revealing the intentions of a defendant. In deploying culture instrumentally, courts in the United States and the United Kingdom constitute their other instruments and indeed their own environments as noncultural. By comparison, courts in Papua New Guinea do not use culture as a means of discovering intentions; indeed, it can be argued that although “custom” is enshrined in the Constitutional law of the country, “culture” hardly appears at all in Papua New Guinean arguments. Case material from the three legal settings illustrates that far from offering a recognition of culture, the cultural defense acts to limit the culture concept to the status of one diagnostic mechanism among other, noncultural ones.

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