Introducton: Culture before the Law

In an essay seminal to the sociological study of law, Pierre Bourdieu writes,

Law is the quintessential form of the symbolic power of naming that creates the things named, and creates social groups in particular. It confers upon the reality which arises from its classificatory operations the maximum permanence that any social entity has the power to confer upon another, the permanence we attribute to objects. . . . The law is the quintessential form of "active" discourse, able by its own operation to produce its effects. It would not be excessive to say that it creates the social world, but only if we remember that it is the world that first creates the law. ¹

The relationship between law and culture that Bourdieu draws here—a relationship of symbiosis or of mutual dependency—is an excellent point of entry into the larger project of this special issue. Concerned with the ways in which the law draws upon, reflects, controls, and even creates the cultural contexts in which it functions, this issue brings together essays that even a few years ago would have seemed, as Robert Post has reminded us, scandalous. ² The conventional establishment story of law foregrounds its autonomy and its untainted character. Law in this story is a matter of following established rules and precedents with little room for political maneuver. Increasingly challenged by scholars in the Critical Legal Studies movement as well as by those who have approached law from minority and feminist perspectives, this formalist, rule-oriented narrative has of late seen many rebuttals. The aim of many of these critiques has been to unearth the sociopolitical nature of law not only in the obviously partisan arena of congressional lawmaking but also in the supposedly impartial rulings of the courts. The emphasis on the "cultural" aspects of these issues, represented by many of the essays in this special issue, results from an awareness that the anthropological concept of "culture"—despite its recent questioning by the anthropological community itself ³ —has emerged with an insistent regularity in the domain of law.

The nine contributors to this issue represent a wide range of current scholarly interest in the culture-law nexus. Feroza Jussawalla, Doriane Lambelet Coleman, and Alison Dundes Renteln address the most explicit entry of "culture" in the courthouse since they deal with aspects of what are "cultural rights" in the context of multicultural democracies. Jussawalla and Renteln plead on behalf of these rights while Coleman is more cautious of their use, particularly in criminal cases where "culture" is presented as a defense to violent crime. Ellen Messer-Davidow and Keith Werhan address First Amendment freedoms and their cultural bases. Messer-Davidow focuses on the role of the conservative movement in influencing college culture, and Werhan shows how cultural anxieties over the depiction of children have led the United States Supreme Court to ignore its own considered judgment in obscenity jurisprudence. Rosemary Coombe and Andrew Herman discuss intellectual property rights and trademark protections on the World Wide Web, showing not only how the threat of lawsuits can be brought to control the expression of netizens in digital environments but also how such threats can themselves encourage resistant cultural production. Carole Boyce Davies also explores such cultural resistance to the legal order and presents a reading of the deportation of black immigrants accused of Communism under the Smith Act and the Walter McCarren Act. And finally Robert Justin Lipkin and Ananyo Basu trace the nexus between culture and the law by looking, in Lipkin's case, into the moral personalities that are demanded by U.S. Constitutionalism, and in Basu's, the ethical and sociopolitical preconditions of the development of tort law in India.

As even this brief overview makes clear, while the contributors are all interested in the relationship between law and culture they do not speak in unison. "Culture" we must remember encapsulates a wide range of political dispositions and ideologies and thus the political tendencies of those who study it...