Reviewed by Lee P. Ruddin, LLB, MRes, PgCert, Roundup Editor, History News Network. Email: leepruddin [at] yahoo.co.uk.
The conflict between law and politics is an age-old one. Add culture and, more specifically, state law and customary law, into the mix, and the clash would appear to be a never-ending one.
Notwithstanding the work of Edward Said, culture was always going to play its part in legal and political proceedings given the increasingly pluralistic world we inhabit today. Yet, no one could have predicted multicultural jurisprudence to have hit the headlines like it has done this past year. News-stands have groaned under the weight of reports from Sharia courts operating in the UK to Italy’s crackdown on its Romani people and the French burqa debate.
While coverage of Taliban-style laws passed by the Karzai government in Afghanistan, public executions by beheading in Saudi Arabia, and a Malaysian woman sentenced to whipping for drinking alcohol have occupied an equally vast number of column inches, it is the phenomenon of competing and conflicting conceptions of equality that is the theme of MULTICULTURAL JURISPRUDENCE: COMPARATIVE PERSPECTIVES ON THE CULTURAL DEFENSE.
“The multicultural character of contemporary society has given rise to myriad political and philosophical questions,” Joke Kusters writes in Chapter Eight (199-227), “which are related to new challenges in legal reasoning” (p.199). “The debate is often emotional as there are political consequences,” cautions Kumaralingam Amirthalingam in Chapter Two (35-60), “mainstream or majority cultural groups fear that the established legal order is threatened while minority cultural groups object to having their norms and value systems marginalised” (p.36). And, as Maneesha Deckha, in Chapter Eleven (261-284), reminds this reviewer, “talking culture can indeed be a ‘tricky business’ given the discourses of racism and colonialism infecting the project” (p.275).
To make matters worse, the very term “cultural defense” (p.325) is a contentious one as John L. Caughey, in Chapter Fourteen (321-334), explains: “If we take the term in its literal form it sounds like we mean that cultural evidence will automatically constitute a defense, that the introduction of cultural evidence will make the defendant either not guilty or less guilty than would otherwise be the case” (p.325).
Indeed, this is what MULTICULTURAL JURISPRUDENCE is about: admissibility of evidence versus a [*726] freestanding defense. Therein, Marie-Claire Foblets and Alison Dundes Renteln offer a monograph containing “provocative essays” (p.3) demonstrating the extensive use of the culture defense in Australia, Belgium, Canada, England, Germany, the Netherlands, Singapore, Spain, South Africa and the United States.
The volume is based on papers presented at the Oñati International Institute for the Sociology of Law. The 2005 colloquium, ‘Multicultural Jurisprudence: Comparative Perspectives on the Cultural Defense,’ was originally convened to shift the discussion away from North America to other countries which had witnessed the rise of culture defenses. The events in Western Europe and Asia during the intervening four years support such a bold editorial move and possibly cause for another colloquium and even a further title in the Oñati International Series in Law and Society.
The book is divided into four sections, containing fourteen chapters (co)written by respected scholars from a range of disciplines. The first three essays examine definitional questions, theoretical issues and uses and abuses of the culture defense (“Theoretical Perspectives”: 5-82).
The distinction between justification and excuse when it comes to admissibility of culture as an extenuating factor is a problematic one, but one that Gordon R. Woodman, Kumaralingam Amirthalingam, and Renteln answer with consummate ease. Although their primary objective is to offer conceptual clarifications of the parameters of the strategy of referring to litigants’ cultural background in the courtroom, questions are asked of the courts’ familiarity with ethnography and sufficiency of expertise to handle cases involving cultural issues.
This takes us nicely into our second section which is comprised of country studies that discuss various contexts in which culture defense is raised (“Overview of Countries”: 83-195). Barbara Truffin’s and César Arjona’s chapter (85-120) illustrates the problematic relationship between cultural identity and the penal process in post-Franco Spain. Their methodological study identifies a deficit in terms of “The courts hav[ing] no power or expertise to verify if they are indeed facing ‘an ancestral rule’ or not” (p.119). Simon Bronitt similarly proposes “cross-cultural training for judges and lawyers” (p.126) in Chapter Five (121-144). Though Cher Weixia Chen, in Chapter Ten (247-259), warns against over-reliance on the so-called expert witness who is “vulnerable to abuse” (p.255). While in Chapter Six (145-173), Mirjam Siesling and Jeroen Ten Voorde, raise the problem of the cultural expert being welcomed by a judge – inhibited by the doctrine of interpretative restraint – as a “deus ex machina,” especially in cases concerning honor-related violence (p.153).
This leads us perfectly to Part III (“Specific Issues”: 197-284) and essays concentrating on particular groups. Considerations of space render it impossible to subject all four specific issues (Romani culture, honor killings, ‘Loss of Face’, and gender) to a detailed review. Although conscious not to portray cultural offences as solely targeting women, this reviewer proposes to concentrate on the second of the four [*727] chapters, that of “Honor Killings and the Cultural Defense in Germany” (pp.229-246) (and a contributor who highlights non-Muslim ‘honor’ killings too).
Clearly, the concept of honor must continue to play a large role in jurisprudence, especially in cases of insult, libel and defamation. It must not, however, protect ‘family honor.’ And yet several defendants in Germany who killed in the name of ‘honor’ have been successful in presenting a culture defense, seeing their murder charge downgraded to manslaughter. But as Ann Cryer, British Member of Parliament, said at the ‘Honour Related Violence within a Global Perspective: Mitigation and Prevention in Europe’ conference in Stockholm (7-8 October, 2004):
We should, of course, understand the circumstances of the crime, but we must not allow those circumstances to receive star billing in any discussion or investigation. That place must be reserved for the crime itself and the victim. Murder is murder and legislation – rather than being sensitive – needs to be clear beyond doubt. (Proceedings 2004, p.20).Maneesha Deckha, author of Chapter Eleven (261-284), is similarly uncompromising here. “The message is clear: culture should not be a euphemism for violence” (p.274). It is interesting to note that Johann Hari, columnist for the Independent, raised the issue of German relativism when One Law for All campaign against Sharia law in Britain was launched in 2008. The campaign calls for the Arbitration Act 1996 to be amended so that all religious tribunals are banned from operating within and outside of the legal system.
This guides us adequately into the fourth area (“Legal Actors”: 285-334) and, more importantly, to Chapter Thirteen (301-319) where Erik Claes and Jogchum Vrielink discuss the struggle between two cultural trends: cultural relativism and the culture of control.
As well as inspiring practitioners to consider the possibility of raising culture defenses in appropriate cases (not to mention encouraging anthropologists to participate and engage in culture defense trials), the book leads the way in this ever-burgeoning field of socio-legal research with a view to both extending its scope and deepening its thrust. All contributors, in conclusion, offer a brief assessment with recommendations/proposals. Brenda Carina Oude Breuil’s, in Chapter Twelve (287-299), is a novel one – considering what Deckha calls the “discursive harm that results through conventional conceptualisations of culture” (p.266) – and the suggestion “to invest more energy in informing children and parents about the criminal law system, rather than focusing on adapting this system to the cultural values of ethnic majority groups” (p.299).
Notwithstanding the interchanging of spellings and linguistic errors throughout or the minor publishing errors after the midway point (pp.183, 194, 227, 247, 245, 319), Foblets and Renteln deserve an accolade for redressing our ignorance regarding to what extent, if at all, cultural imperatives should mitigate punishment in today’s legally pluralistic society. But most nobly of all, they endeavor to end the clash between law and culture. [*728]
Proceedings. 2004. European Conference on Honour Related Violence within a Global Perspective: Mitigation and Prevention in Europe. Stockholm, October 2004. http://www.qweb.kvinnoforum.se/papers/KonferensrapporHRV05.pdf
© Copyright 2009 by the author, Lee P. Ruddin.