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.

Dans leur introduction au livre Law in the Domains of Culture, Austin Sarat et Thomas Kearns écrivent : «Law 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». L'inverse est vrai aussi : les cultural studies (incluant l'anthropologie) sont arrivées tardivement au droit et aux réflexions sur le droit, alors qu'on assistait, ces dernières décennies, à une irruption remarquable de discours culturels dans le domaine du droit.

Il semble bien que l'acquisition d'une certaine «compétence culturelle» soit devenue obligatoire dans les cercles juridiques. Il n'y a pas que la floraison de séminaires et cours sur la «sensibilité culturelle» pour juges, avocats et policiers, mais le «concept de culture» traverse maintenant bien des décisions judiciaires en matière de droits autochtones, et la «défense culturelle» (bien que fortement contestée par certains et toujours sans approbation officielle) est désormais une dimension de nombreux procès criminels impliquant des immigrants. Aussi, la Charte canadienne des droits et libertés réfère à «l'héritage multicultural des Canadiens» (art. 27) dont la préservation et la promotion est une condition de sa propre interprétation.

Invoking a cultural defense has become a popular but controversial legal strategy. After explaining that the scope of the cultural defense is broader than is often understood and that it is used to mitigate punishment, create exemptions from policies, and increase the size of damage awards, I identify the normative principles that justify such a defense. Although it may be defended as a matter of principle, if this defense has any chance of being formally adopted, policies must be established to prevent its misuse. I propose a cultural defense test and show how it could be applied appropriately in a few cases. Following the analysis of its proper use, I demonstrate the potential for abuse by showing how in particular cases cultural arguments failed to meet the requirements of the cultural defense test I propose. Finally I recommend ways to assist courts in finding cultural experts who can authenticate the cultural claims.

Central to any consideration of “culture in the domain of the law” is whether and to what extent culture is justiciable, litigable, and subject to being adduced as evidence before courts and tribunals. Experts, usually from social science and humanities disciplines, will often be called upon to present this kind of evidence. While the Supreme Court of Canada has developed screening criteria for expert evidence, these criteria can be more difficult to apply when the evidence sought to be adduced is “cultural,” as opposed to classically scientific. Concern for the reliability of the expert evidence is multiplied when a jury is acting as trier of fact. This comment reviews a recent decision of the Nova Scotia Supreme Court in a racially-charged defamation case, using it as a platform for discussing the unique issues that are raised when cultural evidence is sought to be adduced in civil matters.

This is an inquiry into the ways in which reasoning attaches to cultural context. It considers whether to seek grounds for decision-making in some common ground or in a recognition of diversity. The essay considers feminist criticisms of Habermas's discourse ethics and Benhabib's efforts to revise such an approach in response to cultural diversity. While the conditions for communication across cultures may be readily met with good will and good procedures, the conditions for reaching binding or consensual decisions are more challenging. The essay rejects the possibility of universal standards for reasoned decisions on three grounds. Reasons conforming to the standards of a multicultural public cannot rest on a single yardstick. Reasoning cannot be detached, in the Cartesian manner, from the corporeal being who is doing the reasoning. Reasoning is not a private and privileged mental process conforming to a unique set of rules. Drawing particularly on traditions of rhetoric from Aristotle to Perelman, the essay concludes: that reasons must be addressed to diverse audiences; that the affective and bodily specificity of deliberators is of central relevance (it matters who judges are); and that we must all continue our “moral education” in dialogue with diverse groups and ways of thinking.

The essay promotes an approach to legal decision-making informed by the Geertzian notion of the ethnographic imagination as a means of understanding and adjudicating issues marked by cultural difference. The reflexivity of this approach–i.e., the way it focuses judicial awareness on the role of mainstream culture and the law itself in the construction of matters before the courts—is most critical in cases involving Aboriginal persons. The discussion proceeds in three steps. First, an historical survey of the relationship between the Canadian state and Aboriginal people highlights the cultural aspects of substance abuse in the case of Aboriginal women. Next, statistical data is synthesized to gain insight into the construction of the substance-abusing Aboriginal woman in social and legal discourse. Finally, a close study of the decisions in Winnipeg Child and Family Services v. D.F.G. reveals the enduring role of unexamined assumptions about race in judicial decision-making and the constraints placed on adjudication by traditional liberal rights discourse. The resulting erasure of cultural identity, the deficiency of the final judgment, and the potentially harmful consequences of efforts to correct its shortcomings demonstrate how the absence of culturally-reflexive judicial imagination can threaten the very meaning of adjudication for parties who are defined by culture and/or race in the eyes of society and the law.

The issue of customary law punishment, especially “payback”, has stretched the limits of the criminal law in a range of sentencing judgements in Australia's Northern Territory. A number of judgments relating to customary law punishment are discussed in this essay. Successive Australian judicial decisions have stated that Aboriginal criminal law did not endure beyond British settlement. However, the jurisprudence of the Northern Territory does not quite reflect this position. The response of the judiciary in the Northern Territory to customary punishments has been to develop a kind of soft legal pluralism. Judges both take into account the proposed punishment, and yet do not formally condone it. The judiciary has attempted to maintain control over customary punishment while being beholden to Aboriginal communities for evidence of appropriate customary responses, and for the carrying out of the promised punishments. This leads to a complex situation where Aboriginal people are both supervised and supervisor, and the state is both in and out of control.

This article uncovers and investigates the vision of the world behind Max Weber's sociology of law. Taking a stand against Weber's epistemological nominalism, ethical relativism and political decisionism, the author critically analyses Weber's vision of science as a vocation and shows that his defense of axiological neutrality is not axiologically neutral. It represents rather a particular position within ethics, which affects his account of the disenchantment of the world, his vision of the rationalization of law and his decisionistic appeal for a strong political leader.

Throughout Canadian history, there has only been a single woman hanged contrary to the jury's recommendation : Elizabeth Workman. Hanged in 1873 in Sarnia, Ontario, she was a working-class immigrant mother, who had been convicted of the murder of her husband. This article seeks to advance our understanding of the hanging of Elizabeth Workman by reporting on a comprehensive study of a series of interrelated questions : why was Elizabeth Workman convicted? Why was she recommended for mercy? Why was this recommendation not accepted? To best answer these questions, a wide range of primary and secondary sources were consulted, including the capital case file, census records, local newspapers, and more recent scholarship on the social and legal context in which her trial and execution took place. The answers to these questions suggest that Elizabeth Workman thus became the only woman ever hanged in Canada contrary to a jury's recommendation for mercy as a result of the specific convergence of individual actions, social context, and legal culture and practice.