'Equality before the Law' in polyethnic societies: the construction of normative criminal law standards
Criminal justice decision-makers are routinely called upon to formulate and apply normative standards — including adjudication on criminal responsibility, assessments as to the availability of defences, and sentencing determinations. In polyethnic societies such as Australia, the terms in which the relevant standard should be conceived is sometimes challenged by defendants on the basis of their ethnic or religious identity. Such claims are commonly regarded as giving rise to a ‘clash’ — between the objective of valuing and respecting multiculturalism and pluralism, while adhering to ‘fundamental’ liberal principles regarding equality before the law (universality, uniformity and neutrality). This article examines a range of ‘diversity friendly’ theoretical perspectives with the aim of revealing whether it is possible to overcome the ‘equality’ hurdle and the associated demands for single and generally applicable normative standards. Drawing from the political philosophy of liberal multiculturalism, legal pluralism, critical race theory and whiteness studies, the theoretical limits of cultural diversity accommodation will be explored.
This article was originally published as McNamara, L, 'Equality Before the Law' in Polyethnic Societies: The Construction of Normative Criminal Law Standards, E LAW: Murdoch University Electronic Journal of Law, 11(2), 2004. Original journal available here.