Equal Treatment vs. Equal Shares: The Primacy of Dignity
Ronald Dworkin highlights a crucial distinction: "equal treatment" (arithmetic identity) versus "treating everyone as an equal." The latter signifies equal respect for different ways of life. In law, this conflict emerges when universal norms clash with minority traditions, as seen in the case of Roma mangavipen marriages. True equality requires institutions to make everyone's life valuable from their own point of view.
The Cultural Defence Strategy: Culture as a Mitigating Factor
Cultural defence is a procedural strategy in which a defendant invokes the norms of their group to minimize culpability. While this protects identity, it is sometimes criticized as a tool for legitimizing violence. To prevent abuse, the Renteln test is applied. It verifies whether the perpetrator belongs to a minority, whether the norm actually exists, and whether it significantly influenced the act.
The Cultural Expert: Translating Context in Criminal Proceedings
The role of expert witnesses is vital—they must distinguish authentic cultural determination from a "theatrical prop" used to evade punishment. These experts build bridges between legal statutes and custom, while simultaneously exposing practices that violate human rights.
Assimilation, Separation, and Pluralism: Models of Penal Policy
States employ three primary approaches: repressive (one law for all), accommodative (leniency toward tradition), and deliberative. The latter model, based on dialogue and the establishment of firm boundaries, is most effective at building the social legitimacy of the law.
The Internal Morality of Law: Lon Fuller’s Eight Requirements
Lon Fuller emphasized that law must be public, general, consistent, and prospective. A system that operates retroactively or is impossible to follow loses its claim to be law. This internal morality is the foundation of a citizen's trust in the state.
The Radbruch Formula: Statutory Lawlessness Negates Obedience
Gustav Radbruch argued that when the conflict between a statute and justice becomes "unbearable," the statute must yield. Statutory lawlessness loses its binding force if it deliberately negates equality, which is the core of justice.
Alexy’s Theory: Balancing Principles in a Collision of Values
Robert Alexy proposes the balancing of principles instead of the rigid application of rules. In cultural cases, the principle of protecting identity is weighed against, for example, the protection of a child. While these values are subject to balancing, certain fundamental rights cannot be entirely extinguished.
Human Rights Define the Limits of Cultural Relativism
Cultural relativism ends where inalienable human rights begin, such as the prohibition of torture or the protection of minors. Culture may explain motivation, but it is never a universal justification for violating an individual's dignity.
Equality in Dignity: The Final Utopia of Modern Law
Equality in dignity is the foundation that the law cannot abandon. It is not about equality of wealth or talent, but about recognizing every human being as a subject possessing the same non-negotiable value.
Procedural Justice Builds the Legitimacy of the Verdict
Tom R. Tyler demonstrated that the acceptance of a verdict depends on procedural justice. People are more likely to accept unfavorable outcomes if they feel they have been heard and treated with respect. This is key to integrating minorities into the legal system.
Pro-Constitutional Interpretation Resolves Cultural Disputes
Judges utilize various methods of interpretation: literal (the letter of the law), systemic (consistency with the Constitution and treaties), and teleological (ratio legis). In cultural defence cases, the purpose of the regulation—such as child protection—often prevails over the literal interpretation of a custom.
Law as Integrity: Judge Hercules and the Coherence of Principles
Dworkin views law as "integrity"—a grand novel written by generations. A judge must write new chapters (verdicts) in a way that maintains the moral and logical coherence of the entire system, without yielding to temporary pressures.
Legal Language: A Barrier or a Tool for Minority Inclusion
Legal language is not neutral; it often imposes majority definitions (e.g., the definition of marriage). It can act as a sword that excludes difference or as a bandage that protects dignity, provided it accounts for the axiological depth of its concepts.
The Philosophy of Law: The Judge's Toolkit in Hard Cases
Philosophy and axiology are not academic luxuries but essential tools for a judge. They allow for the construction of bridges between dry regulations and the complexities of life. Within the constant tension between universalism and relativism lies the opportunity for a law that does not merely punish, but above all understands and respects the diversity of human experience, while protecting our shared foundation of dignity.
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