The Cultural Defense (review)

Abstract

Alice Renteln, The Cultural Defense. New York: Oxford University Press, 2004, 404 pp. Legal theorists have long been considering myriad ways in which US legal practice and discourse navigates particularity within supposedly universal and a-cultural legal system. In her sharp and comprehensive book, Cultural Defense, Alice Renteln mobilizes both policy arguments and Liberal legal theory (Minow 1990) in order to challenge contemporary judicial resistance to use of evidence and defenses in criminal and civil cases. Like many other scholars who have interrogated claims to objectivity made by Liberal legalism in US, (Kennedy 1997) Renteln uses her exploration of the to chart how legal processes imagined as most neutral are themselves constituted by particularity of dominant hegemony. In this, Rentlen joins those who critique Liberal legalism by showing how US law enforces dominant norms under guise of legal neutrality (Brown and Halley 2002). Yet at same time Renteln foundationally relies on Liberal legalism to support formal defense in law, arguing that exclusion of non-dominant norms from adjudication work against fundamental principles of Liberal legalism within its own terms. While providing on clear and rigorous analysis of cases involving notorious cultural Renteln shows how culture, and interpretation of culture by anthropologists and mediators, centrally constitutes legal determinations of guilt and innocence in US. As such, Renteln persuasively argues that courts and legislatures must change current rules for admission of evidence in US courts in order to maintain legitimacy, while also offering principles and policy guidelines by which to manage such changes (Butler 1997). Before charting specific course of Rentlen's argument and conclusion, it may first be helpful to explore what exactly is meant by a in contemporary US legal practice. According to Federal Rules of Evidence, in both civil and criminal cases, all evidence may be admitted according to judge's discretion concerning evidence's relevance, unless otherwise specified by statute or federal rule (Maguigan 1995). While determinations of relevance routinely rely on assumptions (25), most judges consider evidence of defendant or litigant's background to involve an exception determination of relevance that would not be required for evidence considered to be culturally neutral (Maguigan 1995). Additionally, many legal determinations of culpability rely on person which asks what an objectively reasonable person would and should do in circumstances (15, 93). Critiquing dominant bias inherent in any such standard, Renteln argues for formal defense that would 1) require judges to admit evidence of defendant or litigant's background and practices, and 2) consider reasonable person of defendant or litigant's background when applying reasonable person test (15, 35-39, 93). While nothing prevents judge from considering defendant or litigant's background as evidence that bears upon determination of guilt, wrongdoing, damages, etc., an overwhelming number of judges exclude such evidence, most often in ways that prejudice interests of minorities within US (7). Through her case studies, Renteln shows that many times, judges exclude evidence due to assumptions that courts should enforce principles of assimilation (104, 200), while simultaneously imagining that all other adjudications of culpability are not themselves constituted by norms and practices (201). In response, Renteln argues that legislatures must institute formal defense. By formal defense, Renteln does not mean that context would provide complete excuse for legally regulated behavior, but rather that it would be available as partial defense (188, 190, 191), with judges unable to use their discretion in order to exclude evidence (9,187). …