‘Equality Before the Law’ in Polyethnic Societies: The
Construction of Normative Criminal Law Standards
| Author: |
Luke McNamara BA, LLB, LLM, PhD
Associate Professor, Faculty of Law, University of Wollongong, Australia
|
| Issue: |
Volume 11, Number 2 (June 2004)
|
Contents
- The emergence of
multiculturalism as official Australian government policy in the 1970s was
unquestionably an event of great
significance, particularly in light of the
role that racism and cultural imperialism has played in Australia's history.
However,
three decades later, the imprint of multiculturalism on Australian
laws and legal institutions is decidedly faint. As Davidson
has observed:
It
is not flippant to say that a multicultural Australia incorporated souvlaki
and dragon dances, but not the legal, political
and ethical voices of its
myriad NESB newcomers. ... [I]n the realm of legal and political arrangements
... the monocultural
Anglo-Celtic past did not disappear when multiculturalism
became state policy in Australia.[1]
-
The 'gap'[2] between a polyethnic population and a monocultural legal
system has not gone unnoticed. For example, in the last twenty years
the
Australian Law Reform Commission (ALRC) has undertaken two relevant major
references, on The Recognition of Aboriginal
Customary Law (1986)[3] and Multiculturalism and the Law (1992).[4] In addition, a number of scholars have written on various
aspects of the law/cultural diversity relationship.[5]
- The questions raised by this relationship are large and complex. What does
multiculturalism demand of the law and the legal system?
Is the legal system
sensitive to cultural diversity? Should it be? Should the law reflect cultural
diversity? Does it? Should
the law expressly protect distinctive and
differentiated cultural rights? However, the answers which judges, legislators
and
law reformers have provided to date have tended to reflect a rather narrow
and superficial interpretation of the challenges posed
by cultural diversity.
- Diminution of the legal significance of multiculturalism is manifested in
various ways. At one end of the spectrum, law, and the
'mainstream' values and
standards that it embodies, are seen as outside the reach of multiculturalism.
In this conservative
account of the law/diversity 'clash', the fundamental
standards and norms of the law are considered 'off-limits'. Adjustment of
these 'core values' with a view to accommodating difference is not seriously
contemplated or may even be vigorously opposed
as a threat to traditional
'Australian' values and an associated 'way of life'.
- More commonly, the
starting point for considerations of multicultural law reform is an acceptance
that, in liberal democracies,
the legal system does need to 'come to terms'
with the cultural diversity of the citizens which it is supposed to serve.
However,
the parameters for any form of adjustment are firmly (and narrowly)
established by the 'fundamental' principles of equality before
the law and
universality.[6] As Sarat and Kearns have observed, (with reference to the
United States, but arguably with equal application to Australia):
Generally,
color blindness, gender blindness, blindness to differences of sexual
preference-these have been the beacons of
our law. Law has been unable or
unwilling to foster actively a society in which cultural pluralism and
identity politics could
flourish.[7]
- To the extent that it is considered desirable that the law should
'reflect' cultural diversity, active law reform strategies are
generally
deemed to be unnecessary because it is assumed that the organic nature of law,
and its location within culture, mean
that 'mainstream' legal standards and
norms will incrementally, but inevitability, be transformed in response to the
influences
of cultural difference. For example, Laster and Taylor have
observed that:
shifts in our cultural values are mirrored in the law ... [and]
Australian law today reflects a growing acceptance that our society
is
multicultural and that part of the function of law and legal institutions is
to make multicultural social policy 'work'.
[8]
- This position resembles a view expressed by former judge, Sir
James Gobbo, a decade earlier when he suggested that in pursuit of
"justice in
a multicultural society" we should "place our faith in the common law. It is a
deep, rich well - and it will tap
the riches of other cultures, for all deep
wells interconnect."[9]
- An important consequence of this approach to multicultural law
reform, and of the conventional liberal democratic philosophy on
which it is
based, is that multiculturalism in the context of the legal system has largely
been seen as a procedural matter.
Indeed, law reform energies have primarily
been directed at facilitating access to the legal system and including the
promotion
of sensitive and effective cross-cultural communication.[10] In addition, a range of legislative measures based on
international human rights standards and the principle of non-discrimination
have been enacted.[11] While of undoubted importance, such changes do not bring
into question the legitimacy of fundamental legal principles and standards
for
a culturally diverse society. Procedural reforms of this sort often proceed on
the assumption that so long as access is
provided in a manner which is
sensitive to cultural diversity, the legal system-and the rules, norms and
values which are enforced
within it-is more than capable of dispensing justice
to all parties regardless of identity.
- The starting point for this article is
the contention that the full implications of cultural diversity for law and
legal institutions
in 'post-colonial' polyethnic countries such as Australia[12] have not been adequately articulated or taken seriously
within conventional legal discourse due to uncritical acceptance of such
conventional legal wisdoms as:
- the inviolability of fundamental principles such as "equality before the law" and "universality";
- the incompatibility of pluralism with the rule of law; and
- the amenability of 'mainstream' legal values to adjust 'organically' in response to the cultural diversification of society.
- This article approaches the task of finding the limits of multicultural law reform by exposing these propositions to critical
scrutiny, and by looking to a wider range of philosophical and jurisprudential arguments for guidance. Are these 'conventional wisdoms'
valid and verifiable conclusions as to the nature of a democratic legal system; or do they represent powerful myths which play an
important role in maintaining the existing cultural exclusivity and hegemony of the legal system?[13]
In answering these questions this article examines the applicability of Homi Bhabha's depiction of the process of cultural difference
'tension resolution' as one whereby "a transparent norm is constituted by the dominant culture which says that 'these other cultures
are fine, but we must be able to locate them within out own grid".[14]
- The potential for principles such as "equality before the law", "universality" and "colour-blindness" to paradoxically perpetuate
injustice in a culturally diverse society will be examined. Support for this line of analysis, with specific reference to normative
criminal law standards, can be found in the observation of McHugh J, of the High Court of Australia, that "Real equality before the
law cannot exist when ethnic or cultural minorities are convicted or acquitted of murder according to a standard that reflects the
values of the dominant class but does not reflect the values of this minorities."[15]
- Such a judicial expression of doubt about the justice-yielding potential of the Australian legal system's 'fundamental principles'
is rare. In the same case the remaining six judges of the High Court of Australia reaffirmed the court's previous position[16]
rejecting the suggestion that the objective standard which is at the heart of the criminal law defence of provocation should be shaped
according to relevant identity characteristics of the accused, including ethnicity.[17]
According to the court, the "governing principles" of equality and individual responsibility demand that all persons be held to a
single standard.[18]
Similarly, in Walker v NSW[19]
Mason CJ rejected the Indigenous defendant's assertion of the continuing operation of Indigenous criminal laws and the non-applicability
of NSW criminal law on the basis that "It is a basic principle that all people should stand equal before the law. A construction
which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle".[20]
- Despite various necessary and valuable forms of legal accommodation and recognition over the course of the last 20 years, the monocultural
core of Australian law has remained largely unchallenged and unaltered.[21]
This article attempts to account for the apparent cultural "immunity" (and implicit cultural bias) of legal values and standards,
focusing on the political and philosophical foundations of reform initiatives. To date law reform strategies have been developed
on the basis of liberal principles of cross-cultural access to justice and non-discrimination. The article responds to the partial
and problematic nature of conventional liberal responses to the demands of cultural diversity and evaluates the potential of alternative
jurisprudential accounts of the law/culture/difference relationship to facilitate a broadening of the debate over multicultural law
reform to deal not only with issues of access, cross-cultural communication and cultural sensitivity within the dominant legal paradigm,
but also with the processes by which 'common' legal values and norms are constructed and legitimated in culturally diverse societies.
Following Bird and McDonell,[22]
this project challenges the conventional wisdom that judges (and other decision-makers) "make decisions based on the 'facts' and
their unbiased and unproblematised versions of the values of the community",[23]
and joins Bird and McDonell in asking: "Who stands outside the vision of community the law constructs, and what are the origins of
the community values that the court seeks to reflect?"[24]
- Part 2 of this article will briefly examine the manner in which the relationship between polyethnicity, cultural diversity and normative
criminal law standards was approached by the Australian Lawn Reform Commission in its 1992 report on Multiculturalism and the Law,[25]
to illustrate the conventional parameters which have been set for multicultural law reform. Part 3 considers Will Kymlicka's work
on the capacity of liberalism to accommodate multiculturalism in the form of differentiated citizen rights, with an emphasis on the
possible extrapolation of Kymlicka's philosophical principles to the context of criminal law reform and operation.[26]
The insights offered by research and scholarship undertaken under the banner of legal pluralism, will be considered in part 4. In
part 5, the implications of recent insights from critical race theory and "whiteness" studies will be considered, focusing on the
Angela Harris' call for a "jurisprudence of reconstruction" in the context of normative criminal law standards.[27]
Part 6 will draw together the article's conclusions on whether these diverse theoretical "friends of difference"[28]
can contribute to the emergence of a counter-narrative of equality before the of law, which does not automatically mute the claims
of cultural minorities.
- Ultimately, this paper does not pretend to offer neat or simple law reform solutions to the tensions generated by cultural diversity.
Rather, it is designed to promote new and constructive ways of conceiving the relationship between normative legal standards and
multiculturalism. If the terms of the multicultural law reform can be opened up, then a constructive foundation for specific reform
initiatives may be available.
- In
introducing the final report of its reference on "Multiculturalism and the
Law", the Australian Law Reform Commission observed
that "While cultural
diversity is now an accepted part of Australian society, the consequences of
this for the legal system
have not yet been fully considered."[29] Through its work on the reference, the Australian Law Reform
Commission made an important contribution to the necessary considerations.
However, an examination of the Commission's analysis, reasoning and
recommendations, reveals that it adopted a very familiar
approach to
resolution of the problems associated with criminal justice administration in
a polyethnic society: removal of
procedural barriers, enhanced cross-cultural
awareness and faith in the capacity of the legal standards to 'evolve' in line
with the standards and values of the society. Inevitably, this approach led
the Australian Law Reform Commission to conclude
that normative standards in
the criminal law should not be adjusted in accordance with the ethnicity of
the accused.[30]
- The Commission's take on the formulation and application of
objective fault elements is illustrative. Despite acknowledging that
"there is
concern in the community about standards of behaviour and assessments of
reasonableness being devised and imposed
from the perspective of the dominant
culture",[31] the Commission concluded that the such concerns could not
justify abandonment of the single standard approach:
Where reasonableness,
negligence or recklessness is an element, however, the determination is
ultimately a value judgement ...
Such a judgement can only be made against one
set of values. The Commission agrees that a proliferation of different
standards
against which to judge the reasonableness or otherwise of a person's
behaviour in the criminal law context is undesirable. To
apply different
standards to different group would lessen the protection afforded to all by
the criminal.[32]
- To the extent that normative standards might need to change to 'keep up'
with an ethnically and culturally diverse population,
the Commission endorsed
the gradual evolutionary approach:
... the standards of reasonableness against
which behaviour is judged ... have changed over time, and will continue to
change,
in response to changing social conditions including the impact on
Australian society of different cultures and ethnic groups.
A better result
will be achieved of the standard is encouraged to evolve to reflect the
cultural diversity in the Australian
community.[33]
- The language in which the Commission chose to defend its
status quo position regarding objective criminal law standards (note the
intriguing anthropomorphic image of a standard being "encouraged" to change)
effectively highlights the deficiency of the 'organic
evolution' theory of
multicultural law reform. The preferred policies and strategies for
facilitating this evolution of criminal
law standards are: (i) a more
ethnically diverse judiciary, magistracy, legal profession and police force;
and (ii) cultural
awareness training for these and other criminal justice
system decision-makers.[34] While these reforms are not without merit, it is not clear
how they alone can inspire confidence that normative standards will
'naturally' move towards reflecting the cultural diversity of the
population.[35]
- A feature of the handling of multicultural challenges to the
legitimacy of existing criminal law standards and norms, which was
also
reflected in the Australian Law Reform Commission's approach, is to assume
that the challenge is necessarily a request
for 'special treatment'. In its
examination of whether the criminal law should recognise cultural difference,
the Commission
observed that "Tests of criminal liability are there to
determine whether or not a person should be punished for his or her
behaviour," and posed as the critical question: "Does it promote the
objectives of criminal law to punish a person who has acted
in conformity with
cultural norms?"[36] One might observe that the (initial) answer will depend on
whether the "cultural norms" in accordance with which the person has
acted are
the "cultural norms" which are expressed via the relevant criminal law
standards. This, in turn, begs the question:
how are the implicit cultural
norms which underpin the criminal law determined? When does a criminal justice
decision-maker
know when the claim being advanced by a person whose criminal
liability is being assessed involves a departure from normative
criminal law
standards?
- The Australian Law Reform Commission did not stop to consider these
questions. Instead it adopted the default characterisation
of the challenge -
that is, as a claim for the application of a differential standard or
"cultural defence"[37] - and offered up the corresponding default answer. Such
claims, according to the Commission, must be rejected because to countenance
them would "violate the principles of equality before the law and equal
protection before the law."[38] The tendency to automatically characterise claims based on
ethnicity as a requests for differential treatment - that is, with
reference
to a 'special' standard constructed around the accused's ethnic or
ethno-religious identity - is evidence of the
hegemony of the liberal
discourse of equality and universality. The fact that in specific cases a
defendant may choose to frame
her/his claim in this way, further demonstrates
the difficulty of confronting the monoliths of neutrality and objectivity. And
yet, claims based on cultural difference need not be presented or received as
claims for differential treatment. One might
characterise such claims as an
attack on the legitimacy of dominant monocultural norms and a demand for the
endorsement of
a representative normativity which is genuinely responsive to
the ethnic diversity of the society from which it derives it status
- one that
is not coloured by whiteness. Of course, this would be no small task, even if
it was regarded as desirable. However,
opening up the terms of the debate on
multicultural law reform is critical to moving beyond the 'open and shut'
approach of
the Australian Law Reform Commission.
- Therefore, this paper will simultaneously investigate two rather different
approaches to the resolution of lingering dissatisfaction
with the current
application of criminal law standards in a polyethnic society. If the
Commission is right that the existence
and application of only "one set of
values" is a necessary component of the criminal justice system, is it
desirable/feasible
for decision-makers to adopt a multicultural normativity or
'non-white' universality? Alternatively, do differential or multiple
normative
standards which reflect ethnic diversity have a place in criminal law
decision-making processes, and if so, how might
they be constructed and
deployed?
- Given that liberalism has, to a considerable extent, 'underwritten' the
conventional antagonisms within the criminal law towards
the recognition of
cultural diversity, it is appropriate to begin this selected theoretical
survey with a discussion of a notable
attempt to 'liberate' liberalism from
the role of multiculturalism's heavy-handed gate-keeper. In a series of works
published
during the past decade (most notably, Multicultural Citizenship[39] Will Kymlicka has advanced a contemporary political
philosophy that has room for the recognition of differential rights based
on
ethnicity or distinctive cultural identity. Kymlicka consciously sets out to
defend liberalism against claims that it is
inadequate in accounting for
modern community and culture, and in so doing aims to show how liberalism can
respond to the plurality
of cultures.[40]
- Kymlicka argues that minority rights are consistent with,
and indeed promote the liberal ideal of individual freedom.[41] The essential interest of people is to develop and live
according to their beliefs, and it is the responsibility of the state
to
provide the opportunity for this to occur.[42] Individual freedom is said to encompass not only the ability
to pursue one's "conception of the good life" but also to revise
one's views
on what constitutes the good life.[43] The necessary preconditions, to be provided/guaranteed by
the state, are the provision of resources and liberties to individuals,
and
the opportunity to experience and assess other views of the good life.[44] The membership of each individual in a community or
communities is based on one's citizenship and also on one's cultural
membership,
both of which are integral to the individual's pursuit of the good
life.[45] Integral to Kymlicka's conception of individual freedoms is
the value of cultural membership, or "access to a cultural structure"[46] - something which an individual might reasonably be expected
"to want, whatever their more particular conception of good".[47]
- Kymlicka retains the notion of the individual as the central
focus/paradigm of liberalism, but notes that in multicultural and
multinational societies, individuals do not "stand in the same direct
relationship to the state" but rather, do so "through
membership in one or
other of the cultural communities".[48] Thus, the theoretical basis of the relationship between the
individual and the state is not universal incorporation, but consociational.[49] Liberal theory commonly underestimates or discounts the
independent value of cultural membership, focusing instead on the formal
equality of individuals as citizens. However, Kymlicka maintains that
collective minority rights are not inconsistent with
liberal equality, that
they can be reconciled.[50] Such a reconciliation is considered by Kymlicka to be vital
to the survival of liberal theory as politically and practically relevant
in
culturally diverse societies. Kymlicka also acknowledges, as a matter of
pragmatics, that minority rights would become more
politically secure if they
were framed as an essential and integral element of liberalism.[51]
- Kymlicka argues that it is not enough for the state simply
to provide common rights of citizenship without further intervention
to
support and encourage cultural diversity.[52] The attitude of benign neglect - leaving the maintenance of
cultural diversity to the vagaries of the cultural marketplace - is
rejected
as mistaken and incoherent, and as failing to recognise the decisions made by
governments at a basic level decisions
which privilege the dominant culture.[53] The cultural marketplace favours the interests of the
dominant culture and disadvantages the competing claims of minorities. Thus,
state intervention is justified within liberal theory to correct inequalities
which arise through no active choice of the group
or individuals concerned.[54]
- An illustration used by Kymlicka in this context might be extrapolated
(albeit, somewhat creatively) to explore some connections
between Kymlicka's
generalised liberal theory of minority rights and the specific context of
normative standards within the
criminal law. Kymlicka points to the
correlation between Christianity and the nomination of public holidays by
government (in
countries like Canada, the USA and Australia):
In the major immigration countries, public holidays currently reflect the
needs of Christians. Hence government offices are closed
on Sunday, and on the
major religious holidays (Easter, Christmas). This need not be seen as a
deliberate decision to promote
Christianity and discriminate against other
faiths (although this was undoubtedly part of the original motivation).
Decisions
about government holidays were made when there was far less
religious diversity, and people just took it for granted that the
government
work-week should accommodate Christian beliefs about days of rest and
religious celebration.
But these decisions can be a significant disadvantage
to the members of other religious faiths. And having established a work-week
that favours Christians, one can hardly object to exemptions for Muslims or
Jews on the ground that they violate the separation
of state and ethnicity.
These groups are simply asking that their religious needs be taken into
consideration in the same way
that the needs of Christians have always been
taken in account. Public holidays are another significant embarrassment for
the
'benign neglect' view, and it is interesting to note how rarely they are
discussed in contemporary liberal theory.[55]
-
It might be argued, by analogy, that normative criminal law
standards, particularly where manifested in the form of the 'reasonable
person', are similarly 'embarrassing' and inadequate to deliver liberal
justice. Just as public holidays were set at a time
that was 'pre-diversity'
(in religious terms), so too were conceptions of legal normativity set in an
era of pre-diversity,
in terms of ethnicity, culture and religion.[56] A counter-argument might be that unlike public holidays,
which are 'set in stone' until such time as they are changed by governments,
normative criminal law standards are capable of 'organic' adaptation and
evolution as they are operationalised in a diverse
society. However, the
persuasiveness of the counter-argument depends on whether the evolution of
normative criminal law standards
in a manner consistent with the diversity of
a society at any one time can be established.[57]
- Will Kymlicka's theoretical recipe for multicultural justice
is not to salvage or recast universality, but to legitimate recognition
of
differentiated legal rights based on membership of a national minority or
ethnic group. However, just as the case for accommodation
of diversity is made
in the name of liberalism, so too are the legitimate limits of differential
rights - or, by extrapolation,
differential criminal law standards - set by
liberalism. For Kymlicka, any claim for the value of cultural diversity is
also
made within an overall framework of liberalism: "liberal goals are
achieved in and through a liberalized societal culture or nation".[58] In a similar vein, Bhikhu Parekh has suggested that the
ideal multicultural society "is committed to both liberalism and
multiculturalism,
privileges neither, and moderates the logic of one with that
of the other".[59] However, Kymlicka, it would appear, ascribes a dominant role
to liberalism in this relationship. Put simply, "The demands of some
groups
exceed what liberalism can accept. Liberal democracies can accommodate and
embrace many forms of cultural diversity,
but not all."[60] For Kymlicka, the primary limits is that the
rules/standards/values of the minority group cannot be 'anti-liberal'.
Kymlicka
anticipates the argument that this approach suggests that
"reconciling minority rights with liberalism is a Pyrrhic victory":
If the
members of a minority lose the ability to enforce religious orthodoxy or
traditional gender roles, have they not lost
part of the raison d'être for
maintaining themselves as a distinct society? Is the insistence on respect for
individual rights
not a new version of the old ethnocentrism, found in Mill
and Marx, which sets the (liberal) majority culture as the standard
to which
minorities must adhere?[61]
- Kymlicka's answer is that because liberalism is "grounded firmly in the
value if individual freedom" it is not acceptable to tolerate
or legitimate
practices, values, standards or rules which restrict the autonomy of members
of the group and deny members the
choice not to abide by those rules. Clearly
then, an approach to the adoption of differentiated normative criminal law
standards
based on the ethnicity/cultural membership of the accused and/or
victim which was underpinned by Kymlicka's multicultural liberalism
would
eschew absolute cultural relativism in favour of a preliminary evaluation of
the proposed standard in terms of its compatibility
with the liberal
principles of autonomy and tolerance. It might be anticipated that, under such
a system of scrutiny, the prospects
for success of a claim for the application
of a differential standard would depend to a considerable extent on the degree
of
correlation with the dominant standard.
- Merry has described the evolution of the concept of legal pluralism as
follows:
The intellectual odyssey of the concept of legal pluralism moves from
the discovery of indigenous forms of law among remote African
villagers and
New Guinea tribesmen to debates concerning the pluralistic qualities of law
under advanced capitalism. In the
last decade, the concept of legal pluralism
has been applied to the study of social and legal ordering in urban industrial
societies, primarily the United States, Britain, and France. Indeed, given a
sufficiently broad definition of the term legal system,
virtually every
society is legally plural, whether or not it has a colonial past. Legal
pluralism is a central theme in the
reconceptualization of the law/society
relation.[63]
-
Within this process of evolution and development, Merry
identifies two phases of legal pluralism. The first, "classic legal
pluralism", was concerned with "the analysis of the intersections of
indigenous and European law" in colonial and post-colonial
contexts. The
second, "new legal pluralism", espouses that "plural normative orders are
found in virtually all societies".[64]
- The features of the concept of legal pluralism have been
variously explained in the literature. Manderson has succinctly stated
that
"In its simplest form, legal pluralism posits that more than one legal order
inhabits the same physical territory".[65] According to Merry legal pluralism is "generally defined as
a situation in which two or more legal systems coexists in the same
social
field. ... Recent work defines 'legal system' broadly to include the system of
courts and judges supported by the state
as well as nonlegal forms of
normative ordering. ... Thus, virtually every society is legally plural."[66] In a similar vein Griffiths has observed that "Legal
pluralism is an attribute of a social field and not of 'law' or of a 'legal
system'. ... It is when in a social field more than one source of 'law', more
than one 'legal order', is observable, that the
social order of that field can
be said to exhibit legal pluralism. ... [L]egal pluralism is a universal
feature of social organization."[67]
- Sack has emphasised that legal pluralism has a strong
ideological dimension: "Legal pluralism is more than the acceptance of a
plurality of law; it sees this plurality as a positive force to be
utilised-and controlled-rather than eliminated."[68] In these terms, legal pluralism is not a neutral
anthropological lens, but a standpoint from which to challenge the ideology of
"legal centralism". According to Griffiths, legal pluralism aims to:
break the
stranglehold of the idea that what law is, is a single, unified and exclusive
hierarchical normative ordering depending
from the power of the state, and of
the illusion that the legal world actually looks the way such a conception
requires it
to look.[69]
- It may be considered to follow that this version of legal
pluralism (sometimes referred to as "social science" legal pluralism)
is
positively antagonistic towards the idea of state law (or elements thereof,
such as normative criminal law standards) being
adjusted so as to accommodate
polyethnicity and cultural diversity - not because of a lack of sympathy or
support for difference,
but out of a concern that law reform of this sort
perpetuates 'legal centrism'. And yet there is a danger in this stance of
separating the 'concept' from its political traditions and potential. As
Manderson has observed, "The first stage of 'modern
pluralism' was motivated
by a clear political agenda ... Whether in colonial societies, Brazil or the
inner city, 'pluralism'
stood for resistance to the established legal order.[70] The social science version of legal pluralism tends to
under-emphasise this factor - deliberately, it would seem, but nonetheless
problematically.[71] As Alan Hunt has observed, while it is important to
"recognize the diversity of legal phenomena and avoid falling into the
presumption of a unitary entity "the Law", it is also important "to give due
recognition to the importance of both the state as
a political agency and to
state-law."[72] More specifically, Hunt has emphasised the need to "address
the specific articulation between state-law and non-state law".[73]
- The identification and application of differential normative criminal law
standards might be assisted by the insights offered by
legal pluralism: that
it is both empirically established and legitimate that there are multiple sets
of rules or normative
orders in a polytechnic society. Surya Prakash Sinha has
expressly affirmed the empirical and aspirational features of legal pluralism
(or "legal polycentricity") as follows:
Legal polycentricity accepts the
pluralism of moral values. Therefore, it conceives the problem of legal
relationships in terms
of relations among various normative orders within a
legal system and seeks their recognition within that legal system. ... It
is
interested in discovering modes of allocation of decision-making authority
that would maximise the coexistence of these
normative orders."[74]
- However, as one moves from the empirical to the political, from
observation to advocacy of reform, and to the specific terrain
of normative
legal standards, an apparent dilemma emerges. In Legal Pluralism: Toward a
Multicultural Conception of Law, Warwick
Tie expresses the tension as follows:
A problem emerges ... that threatens to limit legal pluralism's capacity to
provide a basis for theorising the conditions of
a multicultural law. The
problem concerns an incommensurability that exists between the goal of
recognising socio-legal diversity
and the construction of universalisable
standards of legal judgement, so necessary for shared social life. ... The
amalgamation
of socio-legal diversity and universal standards of legal
judgement is a conceptually difficult, if not impossible, enterprise.[75]
- In part 2 of this paper I identified two possible strategies for
addressing the potential injustice associated with the cultural
bias of
normative criminal law standards: (a) the (re)construction of a multicultural
or 'non-white' universality; or (b) the
adoption of differential or multiple
normative standards which reflect the diversity of a polyethnic society. The
intractable
"incommensurability" identified by Tie arises specifically because
he pursues the former alone. However, the goal is, arguably,
incompatible with
a legal pluralist orientation, particularly in light of legal pluralism's
opposition to legal centrism.
- Legal pluralism, like Kymlicka's multicultural
liberalism, would appear to more comfortably and logically support the
differential
normative standards approach, given its central tenet that there
exist multiple normative orders in any one 'social field'. However,
as with
Kymlicka's liberalism, legal pluralism sets limits on the accommodation of
cultural difference. Drawing on the work
of Robert Cover,[76] Sarat and Berkowitz, have described those limits:
First, difference must arise out of and express the normative aspirations
of an integrated and ordered community - it must exemplify
and express a
"nomos". In this sense, Cover's legal pluralism embraces the liberal
celebration of multiplicity, but in a way
that insists that the claims of
difference be linked to the requisites of richly constituted, normatively
engaged orderliness.
Second, claims of difference should be honored only when
they themselves honor the principle of difference they assert. ... Legal
pluralism does not require that those of us sympathetic to the claims of
cultural difference stand by as all manner of horrors
are committed in its
name. We can, and should, insist that difference be orderly, even as we invite
questions about what order
entails. And we can, and should, insist that the
claims of "equal but different" honor principles of equality and of
difference.[77]
- For Sarat and Berkowitz, the value of legal pluralism,
reflected in these conditions, is that it "departs from entrenched discourse
and lays the groundwork for a much needed reconciliation of difference and
order."[78]
- Like Kymlicka's expectation that anti-liberal rules or practices would be
a barrier to legally recognised differentiated citizenship
rights in relation
to those rules or practices, the conditions set by Sarat and Berkowitz for an
accommodation of cultural
difference founded on legal pluralism are
substantial. This, of course, does not necessarily make them improper.
However, it
is important to recognise that many minority cultural communities
in countries like Australia, Canada and the USA may fail to
satisfy even the
first condition, precisely because their experiences as ethnic or Indigenous
'others' may militate against
the continuity and cohesiveness necessary for
the expression of a nomos. In this way, the historical hostility to cultural
difference and the associated pressures to "assimilate" may serve to
(re)produce the normativity of dominant cultural values and
practices and
perpetuate the marginalisation of ethnic minorities.
- The challenge may be even
greater when one considers that, even where a decision-maker is 'open' to
claims based on cultural
diversity, that person's limited training and
expertise is likely to heavily influence how they approach the task. As Marie
Deveney has observed, "... the decision maker's understanding of what
constitutes 'cultural distinctiveness' is crucial, for
it can strongly
influence the outcome of the accommodation question."[79] Deveney suggests that:
A common, seemingly predominant,
notion of cultural distinctiveness is ...: Cultural distinctiveness which
might warrant accommodation
exists only where members of the dominant culture
find easily perceived manifestations of the minority culture both to be
starkly
different from their own and to be essentially unchanged from a time
which the dominant culture associates with the 'authentic'
minority culture.[80]
- Assertions as to the dynamic nature of culture and cultural
values are likely to clash with judicial expectations of predictability[81] and certainty in the setting of normative criminal laws
standards.
- Mention of the impact and significance of the
historical experience of minority cultures provides a convenient segue to an
examination
of critical race theory (CRT) perspectives relevant to the
application of normative criminal law standards. A defining feature
of CRT is
its awareness of the contemporary relevance of histories of racial oppression.
In a significant work which describes
and advances the features and
aspirations of CRT, Angela Harris quotes from Richard Delgado and Jean
Stefancic[82] to "succinctly state a now-familiar critique of the liberal
legal language of objectivity and neutrality",[83] which is especially apt to highlight the potential of CRT to
inform an examination of the operation of normative criminal law
standards in
polyethnic societies:
Long ago, empowered actors and speakers enshrined their
meanings, preferences, and views of the world into the common culture and
language. Now, deliberation within that language, purporting always to be
neutral and fair, inexorably produces results that
reflect their interests.[84]
- Challenges to the liberal orthodoxies have come from a
variety of disciplinary, political and philosophical perspectives, but what
has distinguished CRT is that CRT scholars "have questioned concepts of
neutrality and objectivity... from a perspective that
places racial oppression
at the center of analysis and privileges the racial subject".[85] A major theme, then, of CRT scholarship is a concern with
the "ways in which assumptions about race affect the players within
the legal
system... and have a determining effect on substantive legal doctrines".[86] Racism is understood not "as an intentional, isolated,
individual phenomenon, equivalent to prejudice"[87] but as "a structural flaw in our society."[88] CRT supports both exposure/critique of the "deeper structure
that reflects white privilege" beneath the surface of race-neutrality,[89] and, at least at its most optimistic, reform of the rules,
values and practices by which 'whiteness' is manifested as 'universal'.
- For
Harris, what distinguishes CRT from "traditional civil rights scholarship"
(such as might, in the Australian context, be
seen as embodied in the
Australian law Reform Commission's Multiculturalism and the Law, discussed
above) is a rejection of
the view that solutions can be found in "the old
optimistic faith in reason, truth, blind justice, and neutrality":[90]
History has shown that racism can coexist happily with
formal commitments to objectivity, neutrality, and colorblindness. Perhaps
what CRT needs is simply a redoubled effort to reach true objectivity and
neutrality. But, then again, perhaps those concepts
themselves need
reexamination.[91]
- For Harris, CRT supports a "jurisprudence of reconstruction"
which involves a "project of 'writing back' to white dominated legal
rules,
reasoning, and institutions."[92] Harris argues that CRT scholars need not shy away from the
pressures which "impels legal scholars to take the law as their client"
and to
"propose solutions that can be implemented within the exiting legal system",
so long as this occurs while keeping in
mind "the larger political and
economic context of law professing as race-crits continue their theory
building."[93]
- The concept of "whiteness" has emerged as a powerful motif of the insights
and concerns of CRT and allied critical perspectives.
As Cheryl Harris has
observed:
The law masks what is chosen as natural; it obscures the
consequences of social selection as inevitable. The result is that the
distortions in social relations are immunized from truly effective
intervention, because the existing inequities are obscured
and rendered nearly
invisible. The existing state of affairs is considered neutral.[94]
- Margaret Davies has observed that the fact that "critical
reflection about the practical consequences and normative association
of
whiteness" is a relatively recent phenomenon is testament to "[t]he power (and
invisibility) of the white norm".[95] Warren Montag has stated that "in its most historically
effective forms, whiteness does not speak its own name."[96]
- The identification and interrogation of "whiteness" is a
simple and effective rebuff to the claimed neutrality of the law generally,
and race-neutral decision-making in particular.[97] It seems intuitively relevant to a critical evaluation of
the operation of including normative criminal law standards in culturally
diverse and increasingly 'non-white' societies like Australia. Critiques of
whiteness do not offers parameters for the accommodation
of cultural diversity
in the construction and application of normative standards, in the same way
that limits cane be gleaned
from Kymlicka's multicultural liberalism, or legal
pluralism. So where do its insights lead?
- To the extent that whiteness is
understood as a set of cultural values (amongst many sets in a polyethnic
'multi-coloured' society)
the goal may be seen as breaking the nexus between
whiteness and universality, or by concluding that universality is beyond
redemption and should be abandoned in favour of differential normative
standards. And yet, the very act of recognising and accommodating
difference
(for example, in the construction and deployment of differential normative
standards based on ethnicity) may serve
to reinforce the privileging of
whiteness, but reserving for 'white' decision-makers the authority to define
the differentiated
identity, whether favourably or unfavourably.[98]
- In any event, it is simplistic to regard whiteness as merely
one among many sets of cultural values. Joel Olson has argued that
"whiteness
historically has not been an expression of culture so much as a social status
reflecting relations of inequality,
discrimination, privilege, and terror".[99] Having cast whiteness as "an identity of power, not of
culture"[100] it is not surprising that Olson concludes that the
solution is to "neither ... ignore nor redefine white personhood but to
abolish it."[101] For Olson, the goal is not a "colorblind personhood" or a
"multicultural personhood", but an "anti-white personhood" or "abolitionist
personality".[102] Olson's abolitionist personality is, in effect, a new
universality, which is characterised by opposition to white privilege, a
"new
core set of values" based on "Black culture", and a fundamentally political
identity which eschews superiority and commits
to "freedom of all".[103] A complete interrogation of the potential of Olson's
remedy is not possible here, but its "Utopian"[104] nature may make it difficult to translate into identified
legal and political strategies. In addition, consideration would need
to be
given to whether it has currency in a country such as Australia, given that it
is conceived with specific reference to
the history and politics of the USA.
- This paper
has not attempted to 'rank' the various theoretical perspectives discussed in
term of their degree of 'diversity
friendliness'. Rather, the indicia of
legitimate multicultural law reform identified in this paper, drawn from
(multicultural)
liberalism, legal pluralism, critical race theory and
critiques of whiteness, provide valuable reference points and criteria for
assessing both the processes and outcomes of efforts to accommodate (or not
accommodate) claims based on cultural diversity.[105] More specifically, they offer a discourse for
interrogating and critically evaluating the (conscious and unconscious)
parameters
within which criminal justice decision-makers approach the task of
adjudicating in cases where claims are advanced on the basis
of the
defendant's Aboriginality, ethnicity, or religion.
- Of the two primary accommodation strategies identified in this paper
-namely, the adoption of multiple differential normative standards;
and the
(re)construction of a single multicultural normativity - the former is the
approach which would appear to flow most
logically from an application of
Kymlicka's brand of multicultural liberalism or the concept of legal pluralism
deployed by
Sarat and Berkowitz. And yet, the preconditions set for the
distinct cultural community -including adherence to values of autonomy,
tolerance, equality, difference, as well as internal order and integration -
will, even if adopted in the criminal justice
decision-making context,
represent a high threshold that will be practically unattainable for most
ethnic groups, although
it may be satisfied by some Indigenous communities.
- The latter alternative - a reconstructed multicultural normativity -
intuitively generates even greater scepticism, because, although
not
necessarily theoretically implausible, it seems politically naive. And yet,
critical race theory demonstrates that critique
and scepticism is not
necessarily incompatible with practical legislative and judicial attempts to
uncouple whiteness and racism
from 'universal' criminal law standards. To this
end, meaningful scrutiny of the potential for the imagined reconstruction to
be achieved must involve examination of the day-to-day decision-making events
that constitute the negotiation of diversity
and authoritative normativity.
Revelation of the full implications of multiculturalism for the legitimacy of
criminal law values
and standards will be facilitated by consideration of the
agency of criminal justice decision-makers - including police officers,
prosecutors, defence lawyers, magistrates, judges and juries.
[1] A Davidson, "Multiculturalism and Citizenship: Silencing the
Migrant Voice" (1997) 18(2) Journal of Intercultural Studies 77 at
77 & 82
(emphasis added). See also S Castles "Multicultural Citizenship: A Response to
the Dilemma of Globalisation and
National Identity" (1997) 18(1) Journal of
Intercultural Studies 5.
[2] A O'Donnell, "Thinking 'Culture' in Legal Education" [1996] LegEdRev 6; (1996)
7(2) Legal Education Review 135.
[3] Australian Law Reform Commission, The Recognition of
Aboriginal Customary Law. Report No. 31 (Canberra: AGPS, 1986).
[4] Australian Law Reform Commission, Multiculturalism and the
Law. Report No 57 (Canberra: AGPS, 1992).
[5] Eg, G Bird (ed), Law in a Multicultural Australia (Melbourne:
National Centre for Cross-Cultural Studies in Law, 1991); S Garkawe,
"The
Impact of the Doctrine of Cultural Relativism on the Australian Legal System"
(1995) 2 E Law-Murdoch University Electronic
Journal of Law 29; S Bronitt
& K Amirthalingam, "Cultural Blindness: Criminal Law in Multicultural
Australia" [1996] AltLawJl 21; (1996) 21(2) Alternative Law Journal 58; I Leader-Elliott, "Sex,
Race and Provocation: In Defence of Stingel (1996) 20 Criminal Law Journal 72;
S Yeo, "Sex, Ethnicity, Power of Self-Control and Provocation Revisited"
[1996] SydLawRw 15; (1996) 18 Sydney Law Review 304; J Burley, "The Law and Multiculturalism:
Problems With Criminal Law Reform in the Vietnamese Community" (1996) 17
(1&2)
Journal of Intercultural Studies 69; D Stepniak, "Minority Values
and the Reasonable Person of Torts" in M Chanock and L Marks
(eds), 50th
Anniversary Conference of the Australasian Law Teachers' Association-Cross
Currents: Internationalism, National
Identity and Law (Melbourne: La Trobe
University, 1996) p405; and F. Bates, "Minority, Multiculturalism and
Parenthood in Australian
Family Law" (1992) 21 Anglo-American Law Review 202.
[6] ALRC, supra note 4 at 10-14.
[7] A Sarat and T Kearns, "Responding to the Demands of
Difference: An Introduction" in A Sarat and T Kearns (eds), Cultural
Pluralism,
Identity Politics and the Law (1999) 1 at 11.
[8] K Laster & V Taylor, "Law For Our Multicultural Society?
No Worries" in H Selby (ed), Tomorrow's Law (Sydney: Federation Press,
1995)
at 210 (emphasis added).
[9] J Gobbo, Law in a Multicultural Society (Canberra: Australian
Institute of Multicultural Affairs, 1983) at 6. See also J Gobbo,
"The Supreme
Court" in Bird, supra note 5 at 29.
[10] See, ALRC, supra note 4; also K Laster & V Taylor,
Interpreters and the Legal System (Sydney: Federation Press, 1994); Mr
Justice
Brooke, "The Administration of Justice in a Multi-Cultural Society" (1994) 1
Judicial Review 283; D. Eades (ed), Language in Evidence: Issues Confronting
Aboriginal and Multicultural Australia (Sydney: UNSW Press, 1995); J.
Chan
(ed), Proceedings of the Symposium on Cross Cultural Issues in the Law
(Sydney: Ethnic Affairs Commission of NSW, 1993);
M. D'Argaville,
Cross-Cultural Communication Issues and Solutions in the Delivery of Legal
Services (Clayton: Monash University,
1991); Commonwealth of Australia, Access
to Justice Advisory Committee, Access to Justice: An Action Plan (Canberra:
AGPS,
1994); and J. Stubbs et al, Cross Cultural Awareness for the Judiciary
(Sydney: University of Sydney, 1996).
[11] Eg, the Racial Discrimination Act 1975 (Cth) and the
Anti-Discrimination Act 1977 (NSW), Part 2. On the impact of the Racial
Discrimination Act see, Human Rights and Equal Opportunity Commissioner, Race
Discrimination Commissioner, The Racial Discrimination Act: A Review
(Canberra: Australian Government Publishing Service, 1996).
[12] Debate over the implications of cultural diversity for
Australian law has tended to follow two sometimes parallel, but rarely
intersecting tracks: claims based on ethnicity and claims based on
Aboriginality. The ALRC's completion of separate references
on The Recognition
of Aboriginal Customary Law and Multiculturalism and the Law follows this
pattern which mirrors the government
policy 'divide' between Aboriginal
affairs and immigration-related matters (see S. Castles & E. Vasta,
"Introduction: Multicultural
or Multi-Racist Australia? in E. Vasta & S.
Castles (eds), The Teeth Are Smiling: The Persistence of Racism in
Multicultural
Australia (Sydney: Allen and Unwin, 1996) at 1. While sensitive
to the significance of the distinction (particularly from the
point of view of
many Aboriginal people who object to the reduction of their distinctive claims
to arguments for mere minority
status) the project will explore the conceptual
common ground between the multicultural (ethnicity) law reform agenda and the
Aboriginal rights agenda and will consider the practical implications of areas
of overlap as well as points of departure.
[13] It should be acknowledged that the project is necessarily
reformist in orientation. That is, it assumes that it is possible and
desirable to respond more justly to cultural diversity in the construction and
application of normative criminal law standards.
[14] H. Bhabha, "The Third Space" in J. Rutherford (ed),
Identity, Community, Culture, Difference (London: Lawrence & Wishart,
1990) 207 at 208.
[15] Masciantonio v R [1995] HCA 67; (1995) 183 CLR 58 at 74.
[16] Stingel v R [1990] HCA 61; (1990) 171 CLR 312.
[17] [1995] HCA 67; (1995) 183 CLR 58 at 66.
[18] [1990] HCA 61; (1990) 171 CLR 312 at 326.
[19] (1994) 69 ALJR 111 (High Court of Australia).
[20] Ibid at 113.
[21] This pattern is perhaps most significantly reflected in the
approach adopted by the Australian Law Reform Commission in its report
on
Multiculturalism and the Law, supra note 4. On the imperviousness of
Australian legal and political institutions to the
implications of
multiculturalism, see A. Jamrozik et al, Social Change and Cultural
Transformation in Australia (Melbourne:
Cambridge University Press, 1995); G.
Bird, The Process of Law in Australia: Intercultural Perspectives (Sydney:
Butterworths,
2nd ed., 1993); Bird, supra note 5; Davidson, supra note 1;
Castles, supra note 1; and O'Donnell, supra note 2.
[22] Greta Bird and Mark McDonell, "Muslims in the Dock: A
Transgressive Narrative of Law and Life" (1997) 3(2) Australian Journal
of
Human Rights http://www.austlii.edu.au/au/other/ahric/ajhr/V3N2/ajhr3205.html
[23] Ibid.
[24] Ibid.
[25] ALRC, supra note 4.
[26] W Kymlicka, Multicultural Citizenship: A Liberal Theory of
Minority Rights (Oxford: Clarendon Press, 1995).
[27] A. Harris, "The Jurisprudence of Reconstruction" (1994) 82
California Law Review 741.
[28] A Sarat and R Berkowitz, "Disorderly Differences:
Recognition, Accommodation, and American Law" (1994) 6 Yale Journal of Law
& the Humanities 285 at 289.
[29] ALRC, supra note 4 at 9.
[30] The Commission did recommend that "the offender's cultural
background should be specified as a factor to be taken into account
when the
court is passing sentence": ibid at 173.
[31] Ibid at 187. Counter-intuitively, perhaps, Sinha has
identified the concept of reasonableness as a (potential) friend of cultural
pluralism: "The most important quality of this doctrine of reasonableness is
that it can neither be reduced to a finite set
of rules, nor can it be
specified in terms of customs or practices. Therefore, its open-endedness
lends itself to the pluralistic
use": Surya Prakash Sinha, "Legal
Polycentricity" in Hanne Petsersen and Henrik Zahle, Legal Polycentricity:
Consequences of
Pluralism in Law (1995)
[31] at 51.
[32] ALRC, supra note 4 at 187.
[33] Ibid at 187.
[34] Preference for this approach is well-established: see John
McCorquodale, "Judicial Racism in Australia? Aboriginals in Civil and
Criminal
Cases" in Kayleen M Hazlehurst (ed), Ivory Scales: Black Australia and the Law
(1987) at 31-32.
[35] For example, even if the ethnic composition of the New South
Wales magistracy was to reflect the ethnic diversity of the state's
population, it by no means follows that a magistrate, whatever her/his ethnic
identity, would have the unique cultural understanding
to deal with an
application by the accused that s/he be assessed with reference to a
differential standard based on his/her
ethnicity (say, in the context of a
bail application or a sentencing submission). In addition, there is the
difficult of developing
cultural awareness programs that taken into account
intra-group diversity: see Burley, supra note 5 at 82.
[36] ALRC, supra note 4 at 170-171.
[37] Ibid at 171.
[38] Ibid.
[39] W Kymlicka, Multicultural Citizenship: a Liberal Theory of
Minority Rights (1995).
[40] W Kymlicka, Liberalism, Community and Culture (1991) at 3.
[41] Kymlicka, supra note 39 at 75 & Ch 5.
[42] Kymlicka, supra note 40 at 13.
[43] Kymlicka, supra note 39 at 80-81.
[44] Ibid at 81-82.
[45] Kymlicka, supra note 40 at 135.
[46] Kymlicka, supra note 39 at 84.
[47] Ibid at 86. This is based on various theorists who document
the important role of cultural membership in a person's self-identity
and
self-esteem, and the bonds between language, culture and identity: ibid at
88-90.
[48] Kymlicka, supra note 40 at 137.
[49] Ibid at 137.
[50] Ibid at 152-3.
[51] Ibid at 154.
[52] Kymlicka, supra note 39 at 107.
[53] Ibid at 108.
[54] Ibid at 109.
[55] Ibid at 114.
[56] Of course, the silencing of women and Indigenous peoples in
the construction of normative criminal law standards cannot be explained
in
the same way.
[57] The limits of Kymlicka's 'equality argument' are defined to
a certain extent by the existence of disadvantage, which is susceptible
to
redress by the granting of special rights to national minorities, and whether
the rights are sought by polyethnic groups
or national minorities - a
structural difference with important theoretical consequences for Kymlicka.
Kymlicka makes an important
distinction between what he describes as "the two
main sources of cultural pluralism" (Kymlicka, supra note 40 at 239), or
elsewhere, as "patterns of cultural diversity" (Kymlicka, supra note 39 at
10). Multination states are constituted by more than
one culture, marked by
distinct language, shared history and sense of nation and people. Typically, a
state resulting from
the invasion and colonisation of territory occupied by
Indigenous peoples would be described as a multination state, and the
Indigenous nations as 'national minorities' or 'minority cultures' (Kymlicka,
supra note 40 at 239). By way of differentiation,
a polyethnic state is one
marked by extensive immigration of people of diverse cultures. Kymlicka notes
that such individuals,
while allowed to maintain much of their ethnic
particularity, do not constitute nations in the same way that Indigenous
peoples
do (ibid at 239). Post-colonial multicultural societies such as
Australia (and Canada and the USA_ are culturally diverse in both
senses.
although there has long be debate about the relative claims of ongoing debate
in legal and cultural theory over the
comparative claims of Indigenous
Australians and those of immigrant backgrounds: supra note 12.
[58] Kymlicka, supra note 39 at 93.
[59] B Parekh, Rethinking Multiculturalism: Cultural Diversity
and Political Theory (2000) at 340.
[60] Kymlicka, supra note 39 at 152.
[61] Ibid at 153.
[62] The overview of legal pluralism which begins this section
draws on work previously published in L McNamara, "The Locus of
Decision-Making
Authority in Circle Sentencing: The Significance of Criteria
and Guidelines" (2000) 18 The Windsor Yearbook of Access to Justice
60 at
67-69.
[63] S Merry, "Legal Pluralism" (1988) Law and Society Review 869
at 869; see also D Manderson, "Beyond the Provincial: Space, Aesthetics, and
Modernist Legal Theory" [1996] MelbULawRw 18; (1996) 20 Melbourne University Law Review 1048 at
1059.
[64] Merry, supra note 63 at 872.
[65] Manderson, supra note 63 at 1059.
[66] Merry, supra note 63 at 871.
[67] John Griffiths, "What is Legal Pluralism?" (1986) 24 Journal
of Legal Pluralism 1at 38.
[68] Peter Sack, "Legal Pluralism: Introductory Comments" in
Peter Sack and Elizabeth Minchin (eds), Legal Pluralism: Proceedings of
the
Canberra Law Workshop VII (Canberra: Law Department, Research School of Social
Sciences, Australian National University,
1988), 1.
[69] Griffiths, supra note 67 at 4-5.
[70] Manderson, supra note 63 at 1060.
[71] Thanks to Paul Havemann for first prompting this insight.
[72] Alan Hunt, Explorations in Law and Society: Toward a
Constitutive Theory of Law (New York: Routledge, 1993) at 307.
[73] Ibid at 323.
[74] Sinha, supra note 31 at 47, 48.
[75] Warwick Tie, Legal Pluralism: Toward a Multicultural
Conception of Law (1999) at 162, 167.
[76] Robert Cover, "Foreword: Nomos and Narrative" (1983) 97
Harvard Law Review 4.
[77] Sarat & Berkowitz, supra note 28 at 314-315.
[78] Ibid at 315.
[79] See Marie Deveney, "Courts and Cultural Distinctiveness"
(1992) 25 University of Michigan Journal of Law Reform 867.
[80] Ibid at 869.
[81] Ibid at 876.
[82] R Delgado and J Stefancic, "Hateful Speech. Loving
Communities: Why Our Notion of 'A Just Balance' Changes So Slowly" (1994)
[82] California Law Review 851.
[83] Harris, supra note 27 at 742.
[84] Cited ibid. See also G. Torres, "Critical Race Theory: The
Decline of the Universalist Ideal and the Hope of Pluralist Justice"
(1991)
75(3) Minnesota Law Review 993.
[85] Harris, supra note 27 at 750.
[86] D Litowitz, "Some Critical Thoughts on Critical Race Theory"
(1997) 72 Notre Dame Law Review 503 at 503-504.
[87] Harris, supra note 27 at 752.
[88] Ibid.
[89] Ibid at 754.
[90] Ibid at 759.
[91] Ibid at 759.
[92] Ibid at 765.
[93] Ibid at 779.
[94] C Harris, "Whiteness as Property" (1993) 106 Harvard Law
Review 1709 at 1777-1778.
[95] M Davies, Asking the Law Question: The Dissolution of Legal
Theory (2nd ed, 2002) at 281.
[96] W Montag, "The Universalization of Whiteness: Racism and
Enlightenment" in M Hill (ed), Whiteness: A Critical Reader (1997) 281
at 290.
[97] See Barbara Flagg, "'Was Blind But Now I See': White Race
Consciousness and the Requirement of Discriminatory Intent" (1993) 91 Michigan
Law Review 953.
[98] See Neil Gotanda, "Tales of Two Judges: Joyce Karlin in
People v Soon Ja Du; Lance Ito in People v OJ Simpson" in Wahneema Lubiano
(ed), The House That Race Built (Vintage Books, 1998) 66 at 71-72.
[99] Joel Olson, "The Limits of Colorblind and Multicultural
Personhood" (2001) 2 Stanford Agora: An Online Journal of Legal Perspectives
1.
[100] Ibid at 16.
[101] Ibid at 18.
[102] Ibid.
[103] Ibid at 21.
[104] Ibid at 19.
[105] Although my own research currently focuses on criminal
justice decision-making, the challenge of interrogating of normativity,
arising in many other (non-criminal law) legal decision-making contexts,
particularly, as Simpson and Charlesworth have observed,
given that
legislation is increasingly framed in a way which relies on "open-ended
standards, requiring officials to decide,
for example, what is in the 'public
interest' or what is 'reasonable in the circumstances": G Simpson and H
Charlesworth, "Objecting
to Objectivity" in Rosemary Hunter, Richard Ingleby
and Richard Johnstone, Thinking About Law: Perspectives on the History,
Philosophy and Sociology of Law (1995) 86 at 103.
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