A Socio-Legal Perspective of Cultural Defence in the Albanian Courts

Where does the culture end and where the law begins (Lombard; 1991)? The literature argues a lot of whether a cultural defense is accepted or rejected by a court (Brelvi 1997; Chiu 1994; Coleman 1996; Goldstein 1994; Herman 1989; Honig 1999; LaCayo 1993). Law, in theory, knows no culture and recognizes no identity (Sarat and Keams 1999, 13) but the relations of citizens to justice are more complex, diversified according to social categories and practical experiences (Quivy, Van Campenhoudt; 2006). The aim of this paper is to explain how cultural defense strategies are exploited in the criminal courtroom in Albania focusing in a chronological period from 1999 to 2010. Which are the variables and outcomes of judicial decisions in cultural criminal cases and the factors affecting decisions (Martin; 1996)? For doing so I will take the Albanian courts as case study in order to examine the structure of judiciary-citizens relations in which the courts operate. While no Albania jurisdiction recognizes the use of a formal cultural defense, courts have long accepted evidence of cultural factors as the customary law, pursuant to the assertion of traditional criminal law defenses. The way in which culture is being invoked by a given defendant in order to assess whether the criminal law need take account of the role of culture in assigning culpability for the crime put the culture on trials (see, e.g., Goldstein 1994). I approach the topic sociologically and empirically in order to explain the strategy of individuals to identify the uses of culture as a defense in criminal proceedings (Levine; 2003). This data will be analyzed in the light of the sociology of law whose objective is the understanding of social context in which the law is developed (A.-J, Farinas; 1998).