Derechos de los pueblos indígenas, pluralismo jurídico y defensa cultural en el ámbito penal. Reflexiones a partir del caso mexicano

• Autor(a) principal: Parolari, Paola
• Data de Publicação: 2020
• Tipo de documento: Artigo
• Idioma: spa
• Título da fonte: Revista da Faculdade de Direito UFPR (Online)
• Texto Completo: https://revistas.ufpr.br/direito/article/view/67009
• topic: Derecho; Diversidad cultural. Derecho penal. Derechos de los pueblos indígenas. Pluralismo jurídico. Defensa cultural.; Cultural Diversity. Criminal law. Rights of indigenous peoples. Legal pluralism. Cultural defense.

Several national constitutions and international legal instruments recognize the right to cultural diversity as a fundamental right. At the same time, in multicultural societies there is the possibility that individuals from different cultures consider, as licit, behaviors that are criminally sanctioned by the law of the state. It is therefore discussed whether the cultural factors which conditioned the behavior of the defendant should be taken into account in the assessment of her/his criminal responsibility, both in immigration contexts and in those states where there are indigenous peoples. Focusing on the second case, the article aims to verify the feasibility and the desirability of two possible means of recognition of cultural differences in the criminal field: legal pluralism and the cultural defense. To this purpose, it considers the example of how these means are configured in the Mexican legal order. It then discusses, in a more general and theoretical perspective, the “technical” challenges posed – at the legal, institutional and even socio-anthropological level – both by the constitution of a regime of legal pluralism and by the use of the cultural defense in state courts. Finally, the most recurrent normative arguments for and against cultural pluralism in the criminal field are subjected to critical examination. The analysis leads to the conclusion that, although the identification of possible “advanced balances” between respect for cultural differences and the protection of fundamental rights in the criminal field is a difficult goal to achieve, it is not, however, impossible a priori.