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The Cultural Defense

2 April, 2007

I am reading Alison Dundes Renteln’s book The Cultural Defense. The author is described as an anthropologist but writes decidedly like a lawyer: it always strikes me how “critical lawyers” are more radical relativists than any anthropologists. Renteln’s summaries of anthropologists and political philosophers are rather simplistic and, I think, often mistaken (she writes, for instance, that Kymlicka believes migrants have “no culture” and roundly dismisses “postmodern” anthropologists like Abu-Lughod for “writing against culture,” in which I think she is only partly right). Anyway, the book makes fascinating reading because of its numerous examples. I never thought that cultural arguments have successfully been used in courts since the 1970s, and resulted in the acquittal of killers in some cases that I think are unbelievable! The argument was invariably about tradition, treating the contemporary state of affairs — such as law — in the countries the migrants came from (Japan, China, Turkey) as immaterial to the argument. One particularly interesting point is that American courts have, in the past, ruled insanity in cases where they really meant, obviously, that the defendant had been in a state of mind where she sort of relapsed into a cultural tradition and ceased being a modern person.

One Comment leave one →
  1. Pal Nyiri permalink
    10 April, 2007 10:45 am

    Now that I’ve finished reading the book, I have a much better impression of it overall. Renteln makes an attempt to maneouvre between an explicit recognition of cultural differences in court and the danger of misrepresentation, essentialization or instrumentalization. She is aware of these dangers, and she is not generally arguing for cultural difference to decide on guilt or innocence, but rather to refine the severity of pi\unishment. She argues that, in many cases, the degree (though not necessarily the fact) of guilt is related to intent, and when judging the defendant’s intent or interpretation of the siutation, the courts measure it vis-a-vis a hypothetical “reasonable person;” but that reasonable person is the product of dominant culture, in which jurors and judges need no instruction. Therefore, she argues, this creates a de facto inequality before the law.

    She also discusses cultural practices in which courts are called to intervene on behalf of children (scarification, genital cutting, medical practices etc.) She says they should where there is a danger of irreparable harm. Even though this principle is not as clear as it seems — she says this is teh case for genital cutting, but not for ear piercing — it is good that she at least attempts it.

    My main remaining criticism is her unapologetic use of the terms “culture” and “community” for arbitrary groups, such as “Asian;” but this does not really damager her argument, as it turns out.

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