Current Project
Nikko Kulke is a member of the Cultural and Religious Diversity under State Law across Europe (CUREDI) research group. Within this project he is responsible for identifying and analysing relevant German criminal law cases. In his individual doctoral research project he also examines case law from the UK, Italy, the Netherlands, and Belgium.
His individual project deals with the legitimacy of criminal law in multicultural societies. In a liberal legal system, criminal norms require clear and coherent justification. In some cases, culturally normative arguments are used to justify the norm. For example, Germany’s Federal Constitutional Court justifies the criminalization of sibling incest on the basis of cultural-historical social convictions (Section 173 (2) sentence 2 of the Criminal Code). It is hard to disagree with the thesis that criminal law is culturally determined. Nevertheless, criminal law cannot be based solely on the protection of cultural ideas, cultural identities or cultural taboos, but rather on legal goods or interests (as the doctrine of legal goods/interests in German criminal law states).
The aim of this study is to analyse how to assess criminal norms that rely heavily on such cultural-normative arguments in the context of a culturally and religiously diverse society. A central feature of modern societies – including German society, which is the principal focus of this research – is the pluralistic, intertwined, and interwoven coexistence of different populations, with their varied cultures, worldviews, and religious and social ways of life. Increasing globalization – with all the facets of migration and increased mobility that come along with it – is regularly cited as a decisive factor in this development, which is blamed for dissolving the imagined homogeneity that was presumed to have existed in nation-states in earlier times. This results in multicultural societies characterized by ‘super-diversity’, which become home to many distinctive and often competing worldviews whose adherents can provoke cultural counter-reactions in opposition to each other. The triggers for such tensions are manifold and can be as trivial as the mere perception of the behaviour, rituals, and symbols of people who are presumably ‘different’ and ‘foreign’ (a presumption that is often based on people’s outward appearances). The resulting conflicts often play out in the legal arena, especially when they are about demands for equal treatment, consideration of status, and recognition of special normative needs in contrast to the majority society.
Criminal law, as the most intrusive body of law, offers an exemplary expression of culturally and historically developed assumptions that often lie below the surface of conscious awareness and that regularly refer back to hegemonic ideas for their justification. With the help of a more critical, reflexive approach, Kulke’s project will analyse criminal norms from the German Penal Code that rely heavily on such cultural pre-understandings. To be clear, Kulke is not conducting a cultural analysis of criminal law, but rather a critical review of those statutes in criminal law where the concept of culture is invoked as sufficient justification for criminalizing a given practice.
Kulke draws on legal and political theory and philosophy from German, Dutch, and Anglo-American literature to address these pressing questions.