Public Perceptions of Migration as a Criminal Law Issue with a Special Focus on “Cultural Defenses”

Abstract

Immigration is conceived of as a primary law concern, especially one to be addressed through criminal law. Despite its descriptive accuracy of this view, criminalization of immigration has to be seen rather as putting in question the very governability of the Western states. The paper shows that in trying to tackle this global governance crisis at the domestic level, criminal law is utilized as expansion technique of authoritarian regulation, whereby aliens are implicitly considered as tentatively hostile outcast. Further, the paper shows that the proposal to introduce a system of “cultural defences” in criminal law as a tool of taking cultural attitudes of minorities’ members duly under consideration, cannot do. The reason is, the paper assumes, that, where such defences are accepted, this is so due to the similarity of the respective pleas to the stereotypes of the dominant culture itself. The paper concludes then, that the crucial issue is the need to reinvent ways for establishing a polity without social injustice.