This edited volume expands the literature on how cultural information is utilized in judicial decisions, and is an important contribution to the increasingly transnational law and society scholarship that reveals the dynamic relationships between law, politics, and culture. The contributors analyze the use of cultural information in law from a variety of disciplines and geographic locations, making the book relevant reading for law and society scholars as well as legal practitioners and other social scientists interested in how law is understood and practiced in different communities, nation-states, and regional legal systems.
Reflecting the complexity of the notion of a cultural defense, each author provides a different definition and interpretation of what such a defense is. While they do not find common ground on the definition, all authors advocate for judges, lawyers, and other judicial actors to incorporate cultural information with greater sophistication. The authors expand upon the criminal justice focus on how cultural beliefs and practices are incorporated into judicial decisions to mitigate or exacerbate criminal liability. They take a broader definition of the cultural defense, looking at the various ways in which culture is employed by courts, administrative agencies, and other state institutions that regulate society according to culturally specific notions of acceptable behavior.
The chapters provide a range of important examples in the courtroom, from the experience of an anthropologist as an expert witness to the ways that Roma nomadic practices are interpreted by the European Court of Human Rights. Sociolegal scholars, particularly international and comparative law scholars, will appreciate the insights into how judges utilize notions of culture when evaluating the criminality of gender-based violence, minority group cultural practices, and witch hunting. For those interested in the crucial questions of how judicial actors can utilize cultural information to reinforce power differentials, the concluding chapters are essential. There are inherent contradictions in the ways that cultural information is utilized by courts, showing how elites within the dominant culture have the power to define the minority. This key argument highlights the need for similar critical analyses that examine how conceptions of culture help the powerful to maintain their position in society.
Despite these important contributions, the volume maintains the limited notion of culture that pervades other writing on the cultural defense. The emphasis on the cultural practices of minority, generally immigrant, groups reinforces the challenge faced by anthropologists for a decade: how to avoid objectifying minority groups and how to study those with more power. For example, why is there not a discussion of white-collar crime and the ways in which corporate culture is incorporated into those cases? Might such a cultural analysis mitigate or exacerbate executive liability, and would understanding white-collar crime in terms of culture help researchers better understand individuals who find themselves swept up in a workplace that exclusively values the bottom line?
In this volume, like many others, it appears that “culture” is still attributed to those with less power, while those with more power become the default. If sociolegal scholars want to understand relationships between law and criminal behavior, they should expand their sites of inquiry to different cultures and different crimes. For example, there are several chapters in this volume on honor killings but none on war crimes, where cultural information is increasingly used. In at least one case from the International Criminal Tribunal for the former Yugoslavia, one anthropologist refused to testify on behalf of the prosecution and another who did testify reiterated that she did not want the court to generalize from her study of one village.
By broadening the analysis, scholars could increase knowledge about the variety of ways in which culture mediates criminal behavior and judicial decisionmaking.
Finally, the editors acknowledge the limitation of a volume with case studies that are primarily from countries with Western legal systems. These countries employ a similar notion of criminal liability, face similar challenges due to growing immigrant populations, and there are well known examples of the cultural defense in these contexts. Some contributors reiterate well-trodden cases studies where feminism and multiculturalism clash in domestic violence cases. Moreover, some of the analyses are simplistic, such as an uncritical explanation of how and why “face” matters in Asian society, and the uncontroverted condemnation of certain forms of violence without analysis from the point of view of the communities who condone those acts.
However, despite these limitations, each author employs an anthropological lens that enables the reader to understand and appreciate the nuances in each country's history and how national identity affects the incorporation of cultural information in judicial and administrative processes. While the book reveals the need to set standards for incorporating cultural information in judicial proceedings, it also shows how difficult this endeavor will be.
