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2 July 2004 Negotiating law, culture, and justiceAlison Dundes Renteln The Cultural Defense, Oxford University Press, 2004 (404 pp). ISBN 0-19515-402-9 (hard cover) RRP $100. Law, justice and culture have been historically interconnected, but law and culture are beginning to come apart. It is not hard to see why. The rise of legal positivism in the nineteenth century shifted the source of law away from local, moral/social norms to legislation. British colonialism transplanted a foreign legal culture alien to many local customs and indigenous legal systems. Global migration has pitted the cultural values of the migrant communities against the majority values enshrined in the legal systems of destination countries. Roger Cotterrell (2004) has recently argued that law and culture can clash at many levels. We need to rethink their relationship, particularly in criminal defences, civil rights, and social regulation. At the broader level, the law-culture clash raises questions of hegemonic domination, human rights and political philosophy.
To successfully negotiate this difficult terrain, we would do well to heed Reinhold Niebuhr’s Serenity Prayer: ‘God grant me the serenity to accept the things I cannot change, the courage to change the things I can, and the wisdom to know the difference’. The practical problems of the law and culture clash are most apparent in the context of criminal, and to some degree, civil liability. The extent to which cultural evidence is relevant to an individual’s blame or responsibility in court is still highly controversial. In The Cultural Defense, Alison Dundes Renteln examines the debate about the admissibility of cultural evidence in the courtroom. Golding defines a ‘cultural defence’ as something that would ‘negate or mitigate criminal responsibility where acts are committed under a reasonable good-faith belief in their propriety, based on the actor’s cultural heritage or tradition’ (2002, p. 146). However, despite the title and stated focus of her book (p. 5), Renteln’s work clearly goes beyond the cultural defence to consider the broader question of the role of culture in the legal system. She examines a variety of cases including homicide, the treatment of children, animals, and the dead as well as the regulation of marriage, attire, and drug use. The book concludes with a chapter on the ‘right to culture’. Renteln argues that in modern pluralistic societies, government policies should support the flourishing of multiple identities to ensure that ethnic minorities are accorded dignity and rights equal to the majority. Rejecting forced assimilation, she insists on maximum accommodation; individuals should have a ‘right to follow their cultural traditions, unless these traditions cause irreparable physical harm to others’ (p. 19). There are several practical difficulties with Renteln’s approach to pluralism and cultural rights. How does one define culture so as to exclude undesirable sub-cultures? For example, members of certain gangs could claim that they belong to a culture of violence and that cultural evidence of this should be taken into account in assessing their culpability when claiming a defence of provocation. And who qualifies as a member of a cultural group? Many individuals, especially those who belong to diasporic communities, have multiple cultural identities. How do they choose their cultural identity for the purpose of a cultural defence? Should they be able to engage in a kind of cultural forum shopping? What about ‘reverse acculturation’ where a member of the dominant group assimilates into a minority culture? Renteln acknowledges these problems but takes the view that the benefits of a cultural defence outweigh the practical problems (pp. 194, 199).
Beyond the pragmatic problems lies a more fundamental theoretical difficulty. Despite the best efforts to be culturally neutral, one is inevitably drawn to one’s own moral position, shaped by one’s own culture. The dominant culture sets the norms for society; to pretend otherwise is dishonest. Among Western intellectuals (including Renteln) liberalism—the unshakeable commitment to individual autonomy—is the fundamental, and non-negotiable, value. This fundamental value has driven the human rights discourse in the West on a path that occasionally conflicts with Eastern or Asian values, in which communities or interpersonal obligations may matter more than individuals or rights. The clash occurs most notably when particular groups, typically women or children, within a culture suffer discrimination or harm. Female genital mutilation is a case in point. How does one resolve the conflict between internationally recognised children’s and women’s rights on the one hand and cultural rights on the other? Inevitably, there needs to be a hierarchy of rights and this hierarchy is presently determined by Western standards; the ‘cultural hegemon’ decides. The hegemon, whether international or domestic, must be more accommodating. Laws tend to be defined by national boundaries, which are out of sync with cultural boundaries in this globalised world. Out of self interest, hegemonic powers have been quick to put borderless crimes on the books to protect security and commerce. But they have not been so enthusiastic about borderless defences or recognising minority rights. Cultural differences can be mitigated by negotiating universal norms that are less hegemonic and more representative. In criminal cases, an accused person is judged according to the standards of the society he or she lives in. There are three ways cultural conflicts can arise. First, and this problem is particularly relevant to migrant communities, the legal norm may be contrary to the accused person’s cultural norm: what may be legal in the person’s culture may be illegal in the society he or she lives in. Consensual homosexual activity is an example here. Second, an accused may belong to an indigenous group with its own legal system that conflicts with the State’s legal system. For example, hunting rights of indigenous communities may conflict with State law protecting endangered species (p. 96), or an indigenous accused may be subject to customary punishment involving bodily harm that is illegal under the general law. Should the law recognise such punishment? To do so would be to subvert the universal application of the rule of law; to refuse to do so would be to marginalise customary law and subject the indigenous accused to double punishment. Renteln points out that often the court places a two-way bet in these cases. It ‘officially upholds the criminal law but actually recognises cultural imperatives in mitigating the sentence. In this way, [it] simultaneously preserves the rule of law and sees to it that justice is done’ (p. 51).
A third—and perhaps most important for individual justice—conflict arises when the accused is judged by the cultural standards of the majority. The classic example here is the reasonable or ordinary person test, which is the benchmark courts use to determine the blameworthiness of the accused when he or she raises defences such as self defence, provocation, and duress. The problem is that this ostensibly culturally neutral ‘reasonable person’ embodies the moral values of the dominant culture. Courts and commentators have been divided as to whether the ‘ordinary person’ should be imbued with the cultural characteristics of the accused. Opponents argue that this results in cultural stereotypes and condones behaviour that is not acceptable by majority standards. Renteln argues in favour of cultural evidence with the sensible caution that the court is not bound to accept a cultural defence just because cultural evidence is presented. The question is whether, having regard to the cultural evidence, the accused is sufficiently blameworthy to deserve criminal condemnation. It is not clear whether Renteln is arguing for a cultural defence as a separate defence or whether she is merely arguing for greater admissibility of cultural evidence. She claims the former but constantly falls back to the latter. As a separate defence, the cultural defence entails the accused arguing that he or she was justified, or at least should be excused, because the conduct in question was not wrong according to his or her cultural norms. This type of defence was considered and rejected by the Australian Law Reform Commission largely on the grounds that to accept it would violate the fundamental principle of equality and threaten the foundation of the rule of law (1992, para. 8.11). Creating a separate cultural defence may not be the best way forward because it sends the signal that cultural minorities are claiming they are different and that they want to be treated differently. Using cultural evidence to explain and contextualise or to modify and expand general defences is better because it sends the message that cultural minorities want their differences recognised so that they are treated equally. The feminist scholarship on the ‘battered woman’ defence is illustrative. When a man kills as a result of a sudden, violent fight or an insult to his honour, his defence of provocation is readily understood by male judges who have a cultural (culture here referring to male culture) affinity with the accused. When a woman, long abused by her partner, kills him one fine day while he is fast asleep, some find it difficult to understand that the history of abuse and the nature of the relationship have the same provocative effect on her ability to control herself as the sudden fight had on the man. Evidence of battered woman syndrome helps the court understand this difference so that both men and women have equal access to the law of provocation. Similarly, cultural evidence can promote fairness. Renteln could have addressed at greater length and used more effectively the theoretical distinction between justification and excuse in criminal defence discourse (see Fletcher 1978). If a defence is classified as a justification, it has the effect of changing the norm, that is, the justified conduct is considered morally acceptable. For example, when self-defence is successfully raised to a charge of murder, the killing is sanctioned by society as the right thing to have done. However, if a defence is treated as an excuse, the conduct is still condemned but the accused is treated as non-blameworthy and therefore not deserving of punishment. Using cultural evidence to develop and enhance existing excuses is a better strategy; the dominant norm is not affected and the accused is not unfairly punished.
Cultural accommodation has to be a double-edged sword. Just as the dominant culture needs to accommodate, the minority culture also has to be sensitive to the cultural traditions of the majority. Just as the minority cultures seek to be excused for unintentionally transgressing majority norms, they also need to be similarly forgiving when the majority group unintentionally offends against minority cultural norms. To sue an airline company for transporting a deceased in a sack (because the deceased person’s culture finds transportation of the dead in that manner deeply disrespectful) may not be justified if the airline had no cause to know of this cultural significance (p. 173). However, deliberately targeting a cultural group’s sensitivities should justify punitive damages. Equally, to insist on the right to certain cultural practices not suited to modern day living in a multicultural society may be inappropriate. A Sikh may justifiably seek exemption from certain dress codes to wear the turban, but he may have to compromise by substituting the ceremonial dagger that all Sikh men carry with a symbolic representation—perhaps with a harmless, plastic replica. Arguing for the relevance of culture to a criminal defence can be easier than resolving cultural conflicts in the regulation of social practices because claims for social practices are squarely based on recognising the legitimacy of certain traditions. Here Renteln’s principle of maximum accommodation fails and the reality of hegemonic dominance is glaring. When it comes to cultural practices involving children, Renteln firmly states that the legal system should override cultural practices ‘to preserve choice for children’ (p. 72). Traditional ceremonies and rights of passage for children which are harmful—as defined by the dominant culture’s value system—should be prohibited. For Renteln, the (ethnocentric) value of autonomy is non-negotiable. A cultural group that emphasises virtues such as obligation to others and sacrifice of the self will be prevented from passing on that ethos to children if it falls foul of the ethos that puts the self above all else. In its report to the United Nation’s Committee on the Rights of the Child, the Indian delegation expressed its concern clearly:
Renteln argues that only those traditional practices causing irreparable harm justify intervention, and further, that groups are not really prevented from passing on such traditions because they can carry out the practice when the child is old enough to decide for him or herself (p. 218). The liberal view is that the child should not be denied the right to choose. But some cultural traditions may demand precisely that: the child is denied the right to choose because the child belongs to the community. Looked at this way, liberal autonomy is almost an anti-thesis of cultural tradition. Generally culture, like religion, is not a matter of choice; you are born into it and you live by it. That necessitates some incursions into individual autonomy. Different worldviews exist but, under the Western liberal view, it seems that none has the right to assert itself if it conflicts with the individual autonomy worldview.
It may be that less emphasis on individual autonomy may foster a greater sense of duty and obligation, which would benefit the community overall. Filial piety in some cultures is an example. Filial piety exists because children are conditioned to respect their elders and to care for them. In individualistic societies, we raise taxes to care for the elderly and cut taxes to have more babies because the self is all important. Political philosophers countenance overriding individual autonomy by cultural or group rights only if exit rights for individuals in that cultural group are guaranteed; again individual autonomy prevails. In the debate about cultural relativism, individual autonomy is the paradigm. Until we challenge that paradigm, or at least put it on the negotiating table, we may just be paying lip service to minority cultural rights. Renteln’s support for maximum accommodation is admirable. But cultural accommodation under Western liberal philosophy, exemplified in the writings of scholars such as Kymlicka (1995) and Parekh (2000), remains a concession not a right. It will take generations before cross-cultural fertilisation will bear the fruit of fundamental norms reflecting a truly shared human culture. Globalisation will eventually get us there. Until then, we must recall Niebuhr’s prayer: we need the serenity to accept that assimilation to the defining norm of the dominant group may be unavoidable; the courage to negotiate cultural conflicts and develop universal, fundamental norms through international human rights discourse; and the wisdom to know when mutual accommodation is required. REFERENCESCotterrell, R. 2004, ‘Law in Culture’, Ratio Juris, vol. 17, no. 1, pp. 1–14. Harris-Short, S. 2003, ‘UN Convention on the Rights of the Child’, Human Rights Quarterly, vol. 25, p. 130. Golding, M. 2002, ‘The Cultural Defense’, Ratio Juris, vol. 15, no. 2. pp. 146–58. Parekh, B. 2000, Rethinking Multiculturalism: Cultural Diversity and Political Theory, Harvard University Press, Cambridge. Initial Report of States Parties Due in 1995: Addendum: India, 1997, Committee on the Rights of the Child, United Nations Doc. CRC/C/28/Add. 10 [Online], Available: http://www.hri.ca/fortherecord1997/documentation/tbodies/crc-c-28-add10.htm [2004, June 24]. Kymlicka, W. 1995, Multicultural Citizenship: A Liberal Theory of Minority Rights, Clarendon Press, Oxford. Australian Law Reform Commission 1992, Multiculturalism and the Law, Report No. 57, Australian Law Reform Commission, Sydney. Fletcher, G. 1978, Rethinking Criminal Law, Little Brown & Co., Boston. Dr Kumaralingam Amirthalingam is an Associate Professor and Director of International Programmes at the Faculty of Law, National University of Singapore. His research and teaching are centred on criminal law and tort law, while he has an interest in cross cultural issues, human rights and comparative law. |
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