Demystifying culture (original) (raw)
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Delimiting the Culture Defense
2007
This essay builds upon the arguments of Alison Dundes Renteln in her influential book, THE CULTURAL DEFENSE, 2004, in which she argues persuasively for a uniformly recognized culture defense in certain litigations. Critiquing some of her details, we recast her three-prong culture defense test to more effectively balance the competing interests of minority culture members to have their ways of life taken seriously by the courts, and of members of the dominant tradition who wish to preserve the rule of law with its necessary perception as treating all parties equally. The offered formulation now includes the following five elements: 1. Is the litigant an enculturated member of the referenced group? 2. Does the group have an acknowledged tradition as that claimed by the litigant? 3. Is that tradition expected to contribute to the fostering of positive social bonds within the culture group? 4. Was the litigant influenced by that tradition when he or she acted? 5. Were the circumstances ...
Cultural Analysis, Cultural Studies, and the Situation of Legal Scholarship
Moving Beyond Legal Realism, 2003
Multiculturalism and the Politics of Identity, in THE IDENTITY IN QUESTION 3 (John Rajchman ed., 1995). 2. This paradox plays out in many fields of social and legal life today. One example is the criminal law, where the cultural has increasingly appeared in debates over such issues as whether a defendant was reasonable in believing her life was in danger for purposes of justifying the killing of another.
Multiculturalist conflicts and intercultural law
Normative Pluralism and Human Rights. Social Normativities in Conflict, Edited by K. Topidi , 2018
In this chapter, I move from a standpoint arguing that multicultural and pluralist societies produce social conflicts because diversities seem to be unavoidable contradictions. When faced with conflicts, we almost instinctively go on the defensive; we tend to avoid conflicts rather than deal with them. The law is ontologically a social structure conceived as a set of practices to prevent conflicts. It prescribes several judicial models to manage conflicts deciding who is right and who is wrong in accordance with its prescriptions. In this way, the law has become, over time, almost a self-referential institution, which appears self-sufficient and often even distant from the mechanisms that work in everyday life. Since the law is prevalently an instrument of power, conflicts arising from and feeding off the coexistence of plural societies often appear impervious to legal dynamics.
The International Journal of Cultural Policy, 2014
The objective of the present article is to highlight the obscured links between the multilevel and multifaceted legal concept of cultural diversity and its political uses. It intends to provide a clear appraisal of the concepts of cultural diversity within the legal framework in which cultural policies are immersed. It seeks to focus on the uses of cultural diversity as a legal concept that reflect intense disagreements on cultural policies, that helps legitimatize very different and variable political ideas and that emerges from very different backgrounds. After identifying the exact legal scope of the notion, the article analyses the narratives and discourses that lead to the consolidation and use of cultural diversity as a multilevel legal notion.
Is Culture Taboo-Feminism, Intersectionality, and Culture Talk in Law
Can. J. Women & L., 2004
Le present article etudie Vintroduction de revendications culturelles en droit et demande s'il s'agit la d'une innovation interessante-et dans quelle mesurepour les feministes qui adoptent une theorie de l'«intersectionnalite». L'auteure identifie plusieurs approches dans les recherches feministes en droit vis-d-vis du discours culturel en droit et elle examine a fond leurs forces et leurs faiblesses respectives du point de vue de l'«intersectionnalite». Elle analyse comment le concept de la culture presente un aspect paradoxal des rapports sociaux de sexe, particulierement interpellant pour ces feministes. D 'une part, la culture sert de fondement aux revendications normatives au sujet des roles sexues que les feministes tentent de demanteler au nom des droits des femmes. D 'autre part, la culture sert de rampart, utilise par les femmes issues des minorites a I'encontre de la culture majoritaire et des lois adoptees pour refleter les valeurs dominantes. En d'autres termes, la oil se rejoignent I'oppression culturelle et I'oppression sexuelle, respecter la culture presente a la fois des aspects positifs et negatifs pour les femmes. L'auteure soutient qu'une veritable adhesion a I'analyse de l'«intersectionnalite» exige que les feministes soient receptives a des revendications a caractere culturel lorsque ces revendications ne peuvent subordonner les interets des membres les plus vulnerables de ces minorites culturelles en aggravant leur situation, ni dans la situation actuelle, ni dans un avenir previsible. Elle conclut que le droit doit permettre aux groupes marginalises de reclamer la protection de leur culture ou inversement, de resister a des incursions culturelles et que ces revendications juridiques n 'etouffent pas necessairement la dissidence au sein des cultures minoritaires. This article considers whether, and to what extent, feminists committed to a theory of intersectionality should welcome the introduction of cultural claims into law. The author identifies several approaches in feminist legal literature towards culture discourse in law and canvasses their strengths and weaknesses from an intersectional perspective. She discusses how the concept of culture presents a gendered paradox of particular concern for feminists committed to intersectionality. On the one hand, culture props up normative claims about gender roles that feminists seek to resist under a theory of women's rights. On the other hand, culture serves as a defence that women from minority cultures use against majoritarian cultures and the laws generated by the values within those cultures. In other words, when one adverts to the intersection of gender and Vol. 16 2004 15 cultural oppression, giving respect to culture and multiculturalism seems to be both bad and good for women. The author argues that a commitment to intersectional analysis requires feminists to be responsive to cultural claims when such responsiveness would not actually, intentionally, or foreseeably subordinate the interests of vulnerable members of cultural minorities by worsening their condition. She concludes that the law should permit marginalized cultural groups to make claims about cultural protection or, alternatively, to resist cultural encroachments and that such legal claims need not subordinate cultural dissenters within minority cultures.
Book Review: "Multiculturalism and Law: A Critical Debate" ed. Omid A. Payrow Shabani
Law & Society Review, 2009
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Legal practice and cultural diversity: introduction
2009
We have to think a little harder about the role and rule of law in a plural society of overlapping identities (Dr Rowan Williams, Archbishop of Canterbury, 2008) This collection brings together papers by anthropologists, political scientists and legal specialists who consider how contemporary cultural and religious diversity challenges legal practice, how legal practice responds to that challenge and how practice is changing in the encounter with the cultural diversity occasioned by large-scale, post-war immigration. Questions about cultural difference, and whether, or to what extent, such difference should be recognized by legal systems, have provoked much discussion among lawyers and others, and raise issues highly pertinent to current debates across the globe about integration, multiculturalism and the governance of diversity. They are also keenly contested. Well-documented controversies such as those over the demands of Sikhs to wear turbans or Muslim schoolgirls to wear the Islamic headscarf (hijab), over legislation to outlaw racial or religious hate-speech, or arranged and forced marriages, or about whether or not legal systems should acknowledge claims by Muslims to be able to live their lives according to shari'a principles, illustrate how contentious is the relationship between the law and diversity.