Volume
20 No.1, 2005 (Special issue)
Editorial
The Journal's Twenty Years,
1986-2005
Ruth Murbach
Cross-Cultural
Jurisprudence
David Howes, Guest Editor /
Coordinateur
Introduction : Culture in the Domains of
Law
The
Use and Abuse of the Cultural Defense
Alison Dundes Renteln
Abstract
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.
The Bounds of the Permissible : Using 'Cultural Evidence' in Civil
Jury Cases
Robert J. Currie
Abstract
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.
Some Conditions for Culturally Diverse Deliberation
Richard Mohr
Abstract
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 Erasure of Ms. G. : The Cultural Specificity of Substance Abuse
and Adjudication Without Imagination
Vera J. Roy
Abstract
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.
Customary Law, Sentencing and the Limits of the State
Heather Douglas
Abstract
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.
Entre science et politique: La conjonction du positivisme et du
décisionnisme dans la sociologie du droit de Max Weber
Frédéric Vandenberghe
Abstract
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.
Justice Not Done : The Hanging of Elizabeth Workman
Scott M. Gaffield
Abstract
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.
Review
Essay
How Should We Respond to
Youth Crime?
Jim Hackler
Book Reviews
Erik G. Jensen & Thomas
C. Heller (eds.)
Beyond Common Knowledge: Empirical Approaches to the Rule of Law.
Stanford: Stanford University Press, 2003.
Roderick A. Macdonald
Davina Cooper
Challenging Diversity: Rethinking Equality and the Value of Difference.
New York: Cambridge University Press, 2004.
Nancy Ehrenreich
Rögnvaldur Hannesson
The Privatization of the Oceans. Cambridge: The MIT Press, 2004.
Maryse Grandbois
Christopher P. Manfredi
Feminist Activism in the Supreme Court: legal Mobilization and
the Women's Legal Education and Action Fund. Vancouver: University
of British, Columbia Press, 2004.
Nadine Changfoot
Sherene Razack
Dark Threats and White Knights: The Somalia Affair, Peacekeeping
and the New Imperialism. Toronto: University of Toronto Press, 2004.
Rod Jensen
Guy Lemire, Pierre Noreau,
Claudine Langlois
Le pénal en action. Le point de vue des acteurs. Ste-Foy,
Québec: Presses de l'Université Laval, 2004.
Pierre Robert
Aaron Doyle
Arresting Images: Crime and Policing in Front of the Television
Camera, Toronto: University of Toronto Press, 2003.
Lisa Maria Cacho
|
