Session 1: Culture – Critical Assessments

3rd Global Conference

Tuesday 10th November – Thursday 12th November 2009
Salzburg, Austria

The Cultural Defence versus the Defence of Human Rights
Marie-Luisa Frick
University of Innsbruck, Austria

In the globalizing world we live in, migration – due to labour mobility, colonial heritage or asylum regimes – forwards cultural heteronomy at the microscopic level (i.e. single societies and countries), mirroring the cultural heteronomy at the macroscopic level (i.e. the planet). The question of intercultural understanding is thus not only crucial in regard to the coexistence of nations and peoples as a whole, but is more and more gaining in importance in terms of identifying preconditions enabling individuals from various cultural backgrounds to share one commonwealth.

In the recent past a growing number of people in Europe as well as North America and Australia were convinced that this challenge is not easily met, due to what is believed to be fundamental moral or axiological disagreements between Western on the one hand and Asian (in particular Islamic) culture(s) on the other. These antagonisms primarily seem to feature questions of defining individual freedom and its legitimate constraints, women’s role and rights, sexuality, and religion’s contribution to societal order and wellbeing.

Against this background different proposals have been provided to rise to the abovementioned challenge. One of them is the request to grant migrant communities to live according to their imported traditions, regardless of possibly converse stipulations of the legal order. Legal pluralism (i.e. the coexistence of different legal systems within one society) as well as the cultural defence (i.e. taking into account the cultural background of the accused in court) are not just theoretical approaches to handling cultural pluralism, but are increasingly becoming important in practice, e.g. in Great Britain where Sharia Courts have been established recently, or Germany, where the former vice president of the Federal Constitutional Court pleads for accepting cultural defences in case of so called honour killings.

In my lecture I would like to outline the state of the discussion on claims for legal pluralism and cultural defence respectively and critically reflect them from a human rights perspective.