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Introduction : Culture in tne Domains of Law

Published online by Cambridge University Press:  18 July 2014

David Howes
David Howes
Affiliation:
Department of Sociology and Anthropology, Concordia University, Montreal (QC)CanadaH3G 1M8, howesd@vax2.concordia.ca.
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Extract

In their introduction to Law in the Domains of Culture, Austin Sarat and Thomas Kearns write: “[l]aw and legal studies are relative latecomers to cultural studies. To examine [law in the domains of culture] has been, until recently, a kind of scholarly transgression.” The same could be said in reverse: cultural studies (including anthropology) are a relative latecomer to law and legal studies, but in the last few decades there has been a striking irruption of cultural discourse in the domain of law.

It is as if the acquisition of some degree of “cultural competence” has become a duty in legal circles. Not only are there seminars and courses in “cultural sensitivity” for judges, lawyers, and law enforcement officers, but “the culture concept” now informs many judicial decisions regarding Aboriginal rights, and “the cultural defense” (while hotly contested by some, and still lacking official approbation) has become a feature of numerous criminal trials involving immigrants. Interestingly, the Canadian Charter of Rights and Freedoms refers to “the multicultural heritage of Canadians”, and makes the preservation and enhancement of this heritage a condition of its own interpretation.

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 20 , Issue 1: Cross-Cultural Jurisprudence / Jurisprudence Transculturelle , April 2005 , pp. 9 - 29
Copyright
Copyright © Canadian Law and Society Association 2005

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References

1 Sarat, Austin & Kearns, Thomas R., eds., Law in the Domains of Culture (Ann Arbor: University of Michigan Press, 1998).CrossRefGoogle Scholar

2 Sarat, Austin & Kearns, Thomas R., “The Cultural Lives of Law” (Ann Arbor: University of Michigan Press, 1998) at 5.Google Scholar The authors continue: “[i]n the last fifteen years, (…) first with the development of critical legal studies, and then with the growth of the law and literature movement, and finally with the growing attention to legal consciousness and legal ideology in sociolegal studies, legal scholars have come regularly to attend to the cultural lives of law and the ways law lives in the domains of culture.” ibid. This development may be said to have culminated in Sherwin's, Richard book: When Law Goes Pop: The Vanishing Line between Law and Popular Culture (Chicago: University of Chicago Press, 2000).Google Scholar

3 See Niezen, Ronald, “Culture and the Judiciary: The Meaning of the Culture Concept as a Source of Aboriginal Rights in Canada” (2003) 18:2Can. J.L. & Soc. 1CrossRefGoogle Scholar [Niezen]; Asch, Michael, “The Judicial Conceptualization of Culture after Delgamuukw and Van der Peet” (2000) 5:2Rev. Const. Stud. 119.Google Scholar

4 See Wong, Charmaine M., “Good Intentions, Troublesome Applications: The Cultural Defence and Other Uses of Cultural Evidence in Canada” (1999) 42 Crim. L.Q. 367Google Scholar; Renteln, Alison Dundes, The Cultural Defense (New York: Oxford, 2004) [Renteln].Google Scholar

5 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.

6 Ibid. s. 27.

7 See also the International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No 47 (entered into force 23 March 1976, accession by Canada 19 May 1976) [Covenant]. Art. 27 of the Covenant, requires governments to ensure that persons belonging to ethnic, religious, or linguistic minorities within their borders “(…) not be denied the right, in community with the other members of their group, to enjoy their own culture.” The “right to culture” contemplated in the Covenant was brought home in Ominayak and the Lubicon Lake Band v. Canada, Supp. No. 40, UN Doc. A/45/40 (1990) at 1.

8 See Tylor, E.B., Primitive Culture (New York: Harper Torch Books, 1958) at 1Google Scholar, where the first Professor of Anthropology at Oxford University defined culture as “(…) that complex whole which includes knowledge, belief, art, morals, law, custom, and any other capabilities and habits acquired by man as a member of society.” For a more contemporary definition, see Boon, James A., Other Tribes, Other Scribes (Cambridge: Cambridge University Press, 1982) at 52Google Scholar [Boon]: “(…) social facts [traditions, practices, etc.] represent selections from larger sets of possibilities of which societies keep symbolic track, whether consciously or unconsciously, explicitly or covertly. Societies conceptualize themselves as select (in both senses) arrangements, valued against contrary arrangements that are in some way ‘objectified.’” Thus, the culture concept no longer possesses the same unity it once did. Cultures have come to be seen as partial, rather than as wholes, and as conjunctural, rather than essential.

9 Cross-cultural jurisprudence is essentially an exercise in hybridization – in crossing cultures – and there is nothing “trans-cendent” about either its methods or its results. It involves seeing (and hearing) the law of any given jurisdiction from both sides, from within and without, from the standpoint of the majority and that of the minority, and seeking solutions that resonate across the divide. In the terms employed by Nicholas Kasirer, it involves stepping out of “Law's empire” (if only temporarily) and attempting to find some footing in “Law's cosmos”. See Kasirer, Nicholas, “Bijuralism in Law's Empire and in Law's Cosmos” (2002) 52 J. Legal Educ. 29.Google Scholar

10 Geertz, C., “The Uses of Diversity” in Available Light (Princeton: Princeton University Press, 2000) 68 [Geertz].Google Scholar

11 Ibid., at 79, 86. See further Comaroff, John & Comaroff, Jean, “Policing Culture, Cultural Policing: Law and Social Order in Postcolonial South Africa” (2004) 29 Law & Soc. Inquiry 513 at 545.CrossRefGoogle Scholar

12 On transnational migration see Basch, L., Schiller, N. Glick & Blanc, C. Szanton, Nations Unbound: Transnational Projects, Postcolonial Predicaments, and Deterritorialized Nation-States (Amsterdam: Gordon & Breach, 1994).Google Scholar

13 On identity politics see Taylor, Charles, “The Politics of Recognition” in Multiculturalism and “The Politics of Recognition” (Princeton: Princeton University Press, 1992) 25.Google Scholar

14 Rao Balwant Singh v. Rant Kishori (1898), 25 I.A. 54 (P.C.).

15 Ibid., at 69.

16 Bal Gangadhar Tilak v. Shrinivas Pandit (1915), 42 I.A. 113 (P.C.).

17 Ibid., at 136.

18 Kenchava v. Girimallappa Channappa (1924), 51 I.A. 368 (P.C.) [Kenchava].

19 Ibid., at 372–73.

20 Cited in Rocher, Ludo, “Hindu Conceptions of Law” in Nanda, Ved & Sinha, Surya Prakash, eds., Hindu Law and Legal Theory (New York: New York University Press, 1996) 3 at 9 [Rocher].Google Scholar

21 Kenchava, supra note 18 at 373.

22 Rocher, supra note 20 at 7.

23 Pramatha Nath Mullick v. Pradyumna Kumar Mullick (1925), 52 I.A. 245 (P.C.).

24 Ibid. at 246.

25 Glenn, H.L., Legal Traditions of the World (New York: Oxford University Press, 2000) at 267Google Scholar [emphasis added]. See further Waghorne, Joanne, Cutler, Norman & Narayanan, Vasudha, eds., Gods of Flesh/Gods of Stone: The Embodiment of Divinity in India (Chambersburg, Penn.: Anima, 1985).Google Scholar

26 Weil, Stephen E., Rethinking the Museum (Washington: Smithsonian Institution Press, 1990) at 158Google Scholar [Weil]. Various lesser parties were also asserted to have a superior title to the Canadian purchaser, including the Indian government, and the temple itself, or (given its ruined state) some official appointed to look after its affairs.

27 Ibid. See Union of India and others v. Bumper Development Corporation (17 February 1988) (Lexis). See further Bumper Development Corp v. Commissioner of Police of the Metropolis and others (Union of India and others, claimants) [1991] 4 All. E.R. 638, [1991] 1 W.L.R. 1362.

28 See Classen, Constance & Howes, David, “The Museum as Sensescape: Western Sensibilities and Indigenous Artifacts” in Edwards, Elizabeth, Gosden, Chris & Phillips, Ruth, eds., Sensible Objects (Oxford: Berg) [forthcoming in 2006].Google Scholar

29 Weil, supra note 26 at 159.

30 14 November 1970, 823 U.N.T.S. 231.

31 Repatriation does not necessarily mean repossession. See for example, Andrea Laforet, “Relationships between First Nations and the Canadian Museum of Civilization” (Haida Repatriation Extravaganza, Masset, British Columbia, 22 May 2004) [unpublished], where Laforet explains that under its Sacred Materials Programme, the Canadian Museum of Civilization has “(…) an agreement with the Hodenosaunee to provide corn meal mush and burn tobacco for the false face masks and other sacred objects from the Six Nations Confederacy in the museum, and representatives come to the museum twice a year at the museum's expense to do so.”

32 In re: Southern Rhodesia (1919), A.C. 210 (P.C.) at 233–34, n. 4.

33 St. Catherine's Milling and Lumber Co. v. The Queen (1888), 14 A.C. 46 (P.C.).

34 See Hamlet of Baker Lake v. Minister of Indian Affairs and Northern Development, [1980] 1 F.C. 518 at 577–78. The same decision also found that the Inuit did not have “(…) very elaborate institutions (…)” and “(…) about all they could do (…)” was “(…) hunt and fish and survive (…)” (ibid., at 559).

35 Delgamuukw v. British Columbia, (1991) 79 D.L.R. (4 th) 185, [1991] 3 W.W.R. 97.

36 See Mills, Antonia, Eagle Down Is Our Law: Witsuwit'en Law, Feasts, and Land Claims (Vancouver: UBC Press, 1994)Google Scholar [Mills]. Mills records that the traditional penalty for trespass was death, which suggests that the Witsuwit'en were very mindful of property rights. One could compare the institution of the feast hall to a notary office: its records are just as accurate, and always up-to-date, only they are stored in people's memories instead of being written down, and there is a performative, dramatic dimension to the assertion or transfer of title in the feast hall that is missing from the notarial office. On orality and legality see Hibbitts, Bernard J., “Coming to Our Senses: Communication and Legal Expression in Performance Cultures” (1992) 41 Emory L.J. 873.Google Scholar

37 Quoted and discussed in Mills, ibid., at 17. Chief Justice McEachern's uncritical acceptance of early historical accounts as unbiased (when they were, in fact, laced with racist slurs), and his rejection of Gitskan-Witsuwiten oral tradition as “hearsay” or not “literally true” (because the traditions contained elements of myth) together reflect a profoundly chirocentric (or scriptocentric) worldview—that is, a worldview which privileges writing over all other modes of communication. For a good critique of this view see Finnegan, Ruth, Communicating: The Multiple Modes of Human Interconnection (London: Routledge, 2002).Google Scholar For a good rebuttal to McEachern's dismissal of anthropological testimony, and penetrating critique of his ethnocentrism (or inability to “listen to testimony across cultural boundaries”) see Mills, ibid., at 18–31.

38 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at 1069.

39 Macklem, Patrick, Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2001) at 90Google Scholar [Macklem].

40 See R. v. Van der Peet, [1996] 2 S.C.R. 507 at 554 [Van der Peet]: “[t]o recognize and affirm the prior occupation of Canada by distinctive aboriginal societies it is to what makes those societies distinctive that the Court must look in identifying aboriginal rights.”

41 R. v. Marshall (No. 2), [ 1999] 3 S.C.R. 533 [Marshall (No. 2)].

42 Ibid., at 537.

43 Ibid., at 537. See further R. v. Marshall (No. I), [1999] 3 S.C.R. 456.

44 Van der Peet, supra note 40 at 549.

45 Ibid., at 557.

46 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

47 Boon, supra note 8 at ix.

48 Supra note 3.

49 Ibid. at 10.

50 See further R. v. Gladstone, [1996] 2 S.C.R. 723, where the same species-by-species approach was enforced. I would question whether Van der Peet or Gladstone are really in line with the Supreme Court of Canada decision in Delgamuukw, for the latter case entertained the possibility of emergent cultural practices (which are not synonymous with those of the pre-contact period) receiving constitutional protection. One case that is in line with Delgamuukw, and is of particular interest for its unhinging of cultural rights and interests from territorial rights and interests, is R v. Adams, [1996] 3 S.C.R, 101. See the discussion of this case in Macklem, supra note 39 at 100–101.

51 Niezen, supra note 3 at 22.

52 Ibid., at 23.

53 Ibid.

54 Geertz, supra note 10 at 87.

55 Ibid.

56 Marshall (No. 2), supra note 41 at 488.

57 As legal historian David Bell notes: “(…) the stimulus of Maritime treaty litigation, culminating in the expert evidence of [professional historians] at the Marshall trial, has revolutionized scholarly understanding of relations between Amerindians and Europeans in the 18th century.” Cited in Harris, Douglas C., “Historians and Courts: R. v. Marshall and Mi'kmaq Treaties on Trial” (2003) 18:2C.J.L.S. 123 at 129.CrossRefGoogle Scholar

58 Supra note 4.

59 Ibid., at 7.

60 Equally problematic, according to Renteln, is the surreptitious admission of cultural evidence, which is then sometimes upheld and sometimes overturned (as an “abuse of discretion”) on appeal. “There is no uniformity in the way culture is handled by the courts, and this variation leads to dissimilar outcomes, sometimes for similar offenses” (ibid., at 185). Hence the need for “(…) statutory authorization of the admissibility of cultural evidence in the courtroom” (ibid., at 206).

61 Renteln points to art. 27 of the International Covenant on Civil and Political Rights (supra note 7), as one source of the “right to culture,” but decries its relatively restricted use to date (ibid. at 213).

62 Ibid., at 6, 23.

63 People v. Romero, 69 Cal. App. 4th 846 (1999).

64 Cited in Renteln, supra note 4 at 38.

65 Ibid. Other defenses affected by this limitation include: provocation, duress, and mistake-of-fact—all of which come in for the same criticism as the defense of self-defense at different places in Renteln's argument.

66 Ibid., at 36.

67 Ibid., at 32.

68 Ibid., at 115.

69 Ibid. at 218. All of the information in square brackets in this quotation is derived from discussions of cases elsewhere in The Cultural Defense. The opinions are those of Renteln.

70 Ibid., at 217, 203.

71 Ibid., at 217. I think Renteln's take on “harm” needs to be doubled. Heather Douglas' contribution to this special issue forces such a double take on the cultural level, and on the subcultural level see Hoople, Terry, “Conflicting Visions: SM, Feminism, and the Law. A Problem of Representation” (1996) 11:1C.J.L.S. 177.CrossRefGoogle Scholar

72 One of the points which Justice Moir emphasized in his commentary on the anthropologist Dr. Frances Henry's report was that “(…) the report, taken as a whole, suggests for the jurors to reason as Dr. Henry has done; that is, to allow generalizations about police and generalizations about members of the Black community to determine specific issues of fact” (see Currie, this issue). It could be objected that there is no legitimate way to reason about race other than the way in which Dr. Henry did, since to hold otherwise would be to treat race as an objective category rather than the social construct it is. See Berreman, Gerald, “Race, Caste and Other Invidious Distinctions in Social Stratification” (1972) 13 Race 500.CrossRefGoogle Scholar

73 As discussed in Currie, this issue.

74 It is instructive to read Renteln's account (in the article in this issue as well as in chapter 2 of The Cultural Defense) of how culture “influences” individual behaviour in light of Currie's analysis of how the Courts construe the issue of “individual motivation.” Renteln's broadly anthropological perspective and that of the courts are clearly at loggerheads. This results in anthropologists and judges engaging in cross-fire over which discipline commits the grosser “generalizations” with regard to the interpretation of human motivations (an issue which forms a subtext to Renteln and Currie's contributions). Plainly, there is a need for more dialogue (in place of crossfire) on this score.

75 See Currie, this issue.

76 See Mohr, this issue.

77 Ibid. Two other essays which examine the conditions for culturally diverse deliberation in what I would consider to be an exemplary fashion include: Webber, J., “Multiculturalism and the Limits to Toleration” in Lapierre, Smart and Savard, , eds., Language, Culture and Values in Canada at the Dawn of the 21st Century (Ottawa: International Council for Canadian Studies and Carleton University Press, 1996)Google Scholar; De Sousa Santos, Bonaventura, “Vers une conception multiculturelle des droits de l'homme” (1997) 35 Dr. soc. 79.Google Scholar

78 Roy's analysis delves deeply into all the historical and socio-legal determinants of Ms. G.'s situation—that is, all of the social issues that the courts glazed over. In so doing her essay nicely illustrates Richard Mohr's point to the effect that: “[t]he act of interpretation is not a simple mechanistic application of the law to objective facts: the facts [and, I would add, the laws] themselves must be interpreted within a legal and social context. The judge is a participant in-and indeed a part of-that context.” (See Mohr, this issue).

79 See Roy, this issue.

80 See Douglas, this issue.

81 Ibid.

82 This area of the aesthetics of law has nevertheless received significant treatment elsewhere. On the iconography and architecture of law see, for example: Jay, Martin, “Must Justice Be Blind? The Challenge of Images to the Law” in Douzinas, C. & Nead, L., eds., Law and the Image: The Authority of Art and the Aesthetics of Law (Chicago: University of Chicago Press, 1999)Google Scholar; Mohr, Richard, “Enduring Signs and Obscure Meanings: Contested Coats of Arms in Australian Jurisdictions” in Wagner, A., Summerfield, T. & Benavides, F.S., eds., Contemporary Issues of the Semiotics of Law (Oxford: Hart, 2005)Google Scholar; Jacob, Robert, “The Historical Development of Courthouse Architecture / La formazione storica dell' architettura giudiziaria” (1995–1996) 14:30Zodiac 43.Google Scholar See further Manderson, Desmond, Songs Without Music: Aesthetic Dimensions of Law and Justice (Berkeley: University of California Press, 2000).Google Scholar

83 See Mohr, this issue.