Justice Binnie’s point is that the courts are not in a position to suspend judgment indefinitely in the expectation that some academic consensus can be reached, due to the institutional constraints of the judicial process. However, this point only underlines the need for there to be more dialogue, more rapprochement, between history (or anthropology) and law, and more reflexivity on the part of judges in the exercise of their function, in order that the institutional constraints not be perceived as immutable, but themselves a product of history. The law is not above history, but part of it, and just as the practice of history has been transformed in the crucible of Maritime treaty litigation, so must the practice of law. What the law needs now, more acutely than ever, is to reflect on “some conditions for culturally diverse deliberation,” and to institutionalize them (on which more below).

In Defense of Culture

The lead essay in this volume is by American political scientist Alison Dundes Renteln, author of The Cultural Defense. The latter work is a groundbreaking contribution to cross-cultural jurisprudence, and warrants serious consideration in its own right by way of introduction to the essay included here.

Renteln’s primary aim in The Cultural Defense, is to flag the growing number of cases in which “cultural claims” are advanced by members of immigrant or minority cultures now resident in the United States (and other predominantly First World jurisdictions) and to classify them. Her typology of culture conflict in the courtroom includes homicide and assault cases, such as when a defendant is charged with murder for committing an “honour killing” in response to a verbal insult, or when a traditional healing or puberty ritual (ostensibly performed to benefit the child) results in bodily injuries in the eyes of the medical establishment and child welfare authorities. It also includes drug use and smuggling cases, as when substances classified as licit and even essential to social camaraderie or spiritual enlightenment in the defendant’s culture of origin (e.g., khat in Yemeni culture, or peyote in Huichol culture) are classified as dangerous and prohibited in the culture of destination. While most of the extant literature focuses on criminal cases of this sort, Renteln points out that cultural conflicts also arise in all sorts of civil cases, such as employment discrimination suits, as when the dress code of a minority culture clashes with the hygiene or safety codes of the dominant society (or the “image” which a given corporation wishes to project), or over the age and eligibility requirements for marriage. Her typology also extends to cases involving (mis)treatment of the dead, as when state-mandated autopsies are performed irrespective of the religious objections of the deceased’s next of kin, and the (mis)treatment of animals, as when dietary codes differ such that animals classified as pets in one culture, are ritually slaughtered and/or consumed as food in another. Renteln’s typology remains incomplete, and its categories could also be refined further, but it nevertheless constitutes a landmark in the field of cross-cultural jurisprudence, particularly when one considers that: “[s]tandard tools for legal research did not index cases of this kind in any systematic way. Moreover, there were no obviously key words: searching for ‘culture’ on computer databases often led to cases on art or mold.”

In addition to providing a typology, Renteln aims to provide a normative framework for the analysis and resolution of the legal frictions generated by the mingling of cultures in the polyethnic state. Her position is that governments and the courts should cleave to a principle of “maximum accommodation” of cultural differences so that individuals may pursue their own “life plans” (subject to certain provisos, as will be discussed below) in place of the “presumption of assimilation” or “monocultural paradigm” which currently holds sway. The latter paradigm assumes that individuals from “other” cultures should conform to a single national standard, with the result that judges feel no compunction to factor evidence of the cultural background of the litigants into their handling of a case, and simply dismiss such evidence when it is proffered as “irrelevant”. This attitude has the effect of alienating rather than incorporating minorities into the dominant society, and denies them their “right to culture”, in addition to interfering with other fundamental rights, such as equal protection, freedom of association, or freedom of religion. Renteln therefore calls for the establishment of a “formal cultural defense” which would obligate the judiciary to at least consider cultural evidence in all cases involving cross-cultural conflict, while leaving the question of how much weight to attach to such evidence, and whether or not it should excuse the conduct at issue (wholly, partially, or not at all), to be decided on a case-by-case basis.

Culture matters for justice, Renteln argues, because “enculturation” (i.e., cultural conditioning) predisposes individuals to act in certain ways, consciously or subconsciously, and “acculturation” (i.e., assimilation to the culture of destination) is far less prevalent or uniform than is commonly thought.

With particular reference to criminal prosecutions, Renteln proposes that when a defendant’s conduct can be shown to have been “culturally motivated” then this should be considered a mitigating circumstance and constitute a “partial excuse” to the charge, with the result that the accused should be convicted of a lesser included offence and accorded a proportionately lighter sentence. Take the case of People v. Romero, which involved a street fight that ended in the death of one of the assailants. The California Court of Appeal held that the trial court properly excluded evidence concerning the role of street fighters in Hispanic culture. “The expert would have testified that the Hispanic culture is based on honor, and for a street fighter in the Hispanic culture, there is no retreat”; the court held that “… the question of defendant’s honor was irrelevant to whether defendant was in actual fear of death or great bodily injury, and whether his fear was objectively reasonable …” as required by the defense of self-defense. It could be argued that the defendant’s response was reasonable, necessary and proportional by the standards of Hispanic culture, and this should have been comprehended as a partial justification for his conduct by the trial court. In the result, the “objective reasonable person” test operated to exclude cultural information relevant to the defendant’s cognizance of the situation and motivation to behave the way he did. In Renteln’s opinion, it violates the principle of the equal protection of the law when defenses such as self-defense, “… which are theoretically available equally to all defendants, in fact cannot be used by people who come from other cultures.” The “objective reasonable person” test is, in fact, rooted in cultural bias: “… the reality is that this ‘objective’ being is simply the persona of the dominant culture,” by reference to which all other viewpoints are adjudged “subjective” (read: irrational).

In her drive to expose the double standard by which many minority cultural practices are judged, Renteln frequently gives expression to viewpoints which force a double take on the assumed naturalness or “reasonableness” of the practices of the dominant society. For example, in response to the presumption that arranged marriages violate the rule of informed consent, it is observed that “you marry the one you love” whereas “we love the one we marry.” Similarly, while the ritual sacrifice of animals, particularly dogs and eagles, or the tripping of horses in the Mexican charreada, are judged to be “cruel and unnecessary,” the wholesale secular slaughter of chickens for food, or the roping of calves in Western rodeos, does not attract the same opprobrium. Renteln sums up the many strands of her argument by stating that:

In line with her principle of “maximum accommodation,” Renteln argues that “culturally motivated” acts should be allowed in all cases where the “threat” they pose is “illusory” (as defined above), and only disallowed in the event they would result in “irreparable harm to others.” She cites cultural practices leading to death or permanent disfigurement (e.g., tribal scarification, female genital cutting) as instances of the latter class of acts, and would also exclude “… the use of cultural arguments to defend wife beating, many types of corporal punishment of children, and other practices using violence.” It might be objected that the “irreparable harm” standard is not free of cultural bias, since as Renteln herself acknowledges “… [it] is a matter of one’s cultural background whether a tradition is interpreted as involving harm,” but physical integrity must nevertheless take precedence over cultural identity, in her estimation.

In the essay included here, Renteln moves on to tackle the complex issue of how cultural evidence should be handled in the courtroom to guard against misuse of the cultural defense. She proposes a three-prong test for assessing the veracity of a “cultural claim” which includes asking whether the litigant is a bona fide member of the cultural community to which he or she purports to belong; whether the community actually practices the tradition in question, and whether the litigant was “influenced” by the tradition when he or she acted. In her ensuing discussion she surveys a range of cases involving fraudulent identity claims, contested or discontinued or invented traditions, and practices which are motivated by economic necessity or greed rather than “authentic” cultural imperatives. Of particular note is her insistence on the importance of judges taking cognizance of the diversity internal to a culture and avoiding “generalizations,” so that vulnerable groups (women and children) do not have their already marginal position and human rights further undermined by the operation of the cultural defense, and it is not the whole culture that is put on trial when a “cultural claim” is advanced, but only the tradition or practice that is at the origin of the dispute.

The next essay, by Dalhousie law Professor Robert Currie, also concerns the use and abuse of cultural evidence in the courtroom--specifically, expert opinion concerning racism. Race is a cultural issue because it has to do with the social construction of supposedly physical or “natural” distinctions. Currie’s focus is on a civil suit for defamation brought by a Halifax police officer against two public interest lawyers who made statements at a press conference suggesting that the officer’s actions in the context of an illegal search that targeted two black girls had been motivated by race and socio-economic status. The key issue in Campbell v. Jones and Derrick centred on the admissibility of the expert reports and opinions of a sociologist and social anthropologist (commissioned by the defense) regarding the facts that gave rise to the case and the existence of systemic racism in Canadian society. Currie presents a lucid analysis of the law of evidence concerning the scope and admissibility of expert testimony in civil jury as distinct from appellate trials. He goes on to show how this body of law intersects with the (un)reliability of the “generalizations of social science” in the opinion of the judge who sat on Campbell. In addition to exposing how the issue of “individual motivation” is understood by the courts, Currie’s essay is of interest for what it reveals about the judicial construction of the disciplines of sociology and anthropology. This turns out to be informed by some egregious assumptions, as when the judge in Campbell notes that these fields “… lack the precision and specificity which characterizes a science like chemistry or an area of technical expertise like engineering.” Such a construction is based on misplaced comparison, and stands in need of correction for the way in which it misrepresents the multiplicity of theoretical and methodological approaches within the social sciences themselves, never mind those between the human sciences and the physical sciences.

The fulcrum point in this special issue is occupied by an essay entitled “Some Conditions for Culturally Diverse Deliberation” by Australian sociologist and law professor Richard Mohr. This essay offers a brilliant way out of the impasse that was remarked upon at the end of the last section when the prospect of any further dialogue between aboriginal peoples and the state, or practitioners of history (or anthropology) and those of law, appeared to be arrested by Justice Binnie’s statement to the effect that: “[t]he judicial process must do as best it can.” Mohr is alive to the fact that it is “… characteristic of law that it involves not just endless communication or argument, but that it must proceed to a decision.” He nevertheless argues that the judicial process could do better by first, recognizing that interpretation is an “active process”; second, pluralizing the notion of the audience (or “public”) with which the judiciary imagines itself to be in conversation when rendering a decision; third, reflecting critically on the ideal of impartiality by factoring consciousness of the corporeality and specific life experiences of all of the parties to a case (including the judiciary) into the deliberative process; and fourth, broadening the court’s repertoire of “ways of deliberating” so that decisions can proceed from arguments addressed to “the whole person” instead of some abstract public (conceived as a collection of autonomous, interchangeable rights-bearing subjects). In specifying the conditions for culturally diverse deliberative action, Mohr lays the groundwork for an “architecture of institutions” that restores humanity to the judicial process.

The next essay, by legal translator and recent McGill law graduate Vera Roy, presents a harrowing analysis of the denial of humanity perpetrated by the prevailing ideology of legal liberalism. Entitled “The Erasure of Ms. G.,” Roy’s essay focuses on what could be considered a classic case of the clash between maternal and fetal rights, were it not for the fact that the defendant was an aboriginal woman and the behaviour which precipitated the whole sorry affair involved substance abuse. As Roy brings out, the cultural specificity of substance abuse in aboriginal communities, not to mention Ms. G.’s own identity, were systematically elided at each level of the court system--from the initial hearing of the motion to commit “the mother” to a residential treatment centre to prevent damage to the fetus, all the way up to the Supreme Court of Canada--in a flagrant example of what the author (with a nod to the work of Clifford Geertz) calls “adjudication without imagination.” By framing the issue exclusively in terms of a conflict of rights, the courts gave short shrift to the clash of cultures that formed the subtext of the case. As such, the courts passed when they should have seized on the opportunity “… to recognize that the laws and the bodies responsible for enforcing them [had], in very profound and significant ways, played a hand in creating the very situation Ms. G. found herself in.” Of course, to allow such culturally-relevant information in would have implicated the courts themselves in the genesis of Ms. G.’s situation, but this level of reflexivity was precluded by the “analytic tools” (namely, rights discourse) which the courts repeatedly insisted were all they had at their disposal.

The concluding essay in this volume, by another Australian legal scholar, Heather Douglas, speaks in an illuminating way to the position statement, and to all the essays which have gone before by dealing head-on with the issues of violence, substance abuse, social context, evidence of customary law, and the interactivity of cultures. Douglas describes the species of “weak legal pluralism” which has evolved in the jurisprudence of Australia’s Northern Territory in the face of the anomic conditions of contemporary aboriginal communities, perceived as spaces of “social devastation.” Her essay reveals how Northern Territory judges are creating an opening for community members to inflict physical harm on offenders (e.g., spearing in the thigh in accordance with aboriginal customary law), and reducing formal sentences proportionately, without for all that officially condoning such violence, but sensing its necessity in the interests of enabling aboriginal peoples to regain some semblance of “cultural control” over their situation. Such concessions fly in the face of legal liberalism, with its doctrine of the integrity of the person, yet as Douglas shows, in the extreme cases contemplated here some such measure may be necessary for purposes of “settling down” the community and restoring peace. Troubling questions remain, such as whether what Douglas calls “the equation of Aboriginality, alcohol and social devastation” does not objectify the social problems of aboriginal communities and distance them from those of the mainstream. Douglas also draws attention to the issues of governmentality that are raised by this seemingly enlightened approach to sentence determination in the section of her essay on “the expanding arsenal of penalty.” For example, insofar as the defendant remains under the watch of government officers, and members of the community are expected to inform state officials about how and when the promised punishment (or “payback”) occurs, then “… the defendant’s community becomes a disciplinary space [i.e., an extension of prison] and members of the community become connected to the white legal system through a kind of self-surveillance.” At the same time, the articulation of formal and customary law in regard to punishment remains imperfect, leading to “… a complex situation where Aboriginal people are both supervised and supervisor and the state is both in and out of control.” In other words, justice emerges out of the interstices of cultures.

Limitations of space prevented me from including all of the essays which the many respondents to the call for papers for this special issue proposed to write, and some papers which were promised never did materialize, perhaps due to the complexity of the theme. Culturally-reflexive legal reasoning is not easy. It involves cultivating the capacity to be of two minds about even the most (apparently) singular or “objective” facts, and hearing both sides of the law--not just the lawyers for both parties to the dispute. (Take a second look at any of the works by Willie Cole or Ron Noganosh reproduced in this volume, and you will see what I mean).

In addition to those papers which never did materialize, there are a number of topics which could and should have been addressed in this issue, but no papers were forthcoming. For example, I would have liked to include an essay on how the cultural defense has been or might be used by American or European subjects who run afoul of the law in non-Western jurisdictions for smuggling drugs or alcohol, violating local dress codes, or participating in treasonous activities. To reverse the tables again, it would have been interesting to have an essay on how, say, the Canadian Government’s claim to ownership and jurisdiction over the interior of British Columbia would have been received in the Gitskan-Witsuwit’en feast hall. Another topic which ought to have been addressed is the culture of the courtroom or “aesthetics of law”--that is, how the iconography of justice (blindfold, scales, sword), the architecture of the courthouse, the dress codes and body language of lawyers and judges, and so forth, impact on the judicial process itself. For all its gaps, it is hoped that this special issue, by reversing the gaze of Sarat and Kearn’s Law in the Domains of Culture, and focussing on culture in the domain of law, has helped to establish cross-cultural jurisprudence as a vital new domain for academic inquiry and judicial notice.

On the Works of Willie Cole and Ron Noganosh as Models for Thinking about Cross-cultural Jurisprudence

While researching this issue, my attention was drawn to a recent exhibition at the Musée nationale des Beaux-arts du Québec (MNBQ) entitled “Double Play: Identity and Culture.” This exhibition nicely illustrated Geertz’s point concerning the extent to which we now live in the midst of an enormous cultural collage, and how many legal and ethical issues which used to arise mainly between societies, now increasingly arise within them. The exhibition was curated by Jocelyne Lupien and Jean-Philippe Uzel, both of the Département d’Histoire de l’Art at the Université du Québec à Montréal (with the assistance of MNBQ exhibitions curator Paul Bourassa), and grew out of the work of the multidisciplinary research group, Le Soi et l’Autre. The Double Play exhibition centred on the works of three contemporary artists, including African-American Willie Cole, and Ojibwa Canadian Ron Noganosh. Cole and Noganosh kindly consented to the inclusion of a series of illustrations of their work in this special issue, and we are also fortunate to have been permitted to reprint some excerpts from the “Double Play” exhibition catalogue (authored by Lupien), which help spell out the significance of these thought-provoking representations of the forging of cultural identities in contemporary North American society.

I regard Cole and Noganosh as aesthetic anthropologists who arrange everyday objects from the North American urban landscape (e.g., hairdryers, hubcaps) in novel configurations inspired by the forms of their cultures of reference (e.g., African masks, Amerindian warrior shields). These configurations, with what Lupien calls their “two levels of representation” or “murky duality,” precipitate a profound destabilization of our conventional habits of perception, and by so doing encourage us to reflect critically on the contingency of any and all identity formations. The double vision enshrined in Cole and Noganosh’s work embodies the essence of what I call cross-cultural aesthetics, and I offer it (along with Lupien’s commentary) as a model for “culturally diverse deliberation.” The reader is invited to contemplate the cross-cultural aesthetic constructions of Cole and Noganosh as a counterpoint to the essays by the other contributors to this special issue, and--by tacking back and forth between them--arrive at a fuller appreciation of what Vera Roy calls “adjudication with imagination.”

[Notes and references omitted. Please see the published version of this article if you wish to consult the notes and references.]

David Howes
Department of Sociology and Anthropology
Concordia University
Montreal (QC)
Canada H3G 1M8
howesd@alcor.concordia.ca.