Cultural Pluralism, Identity Politics, and the Law

Why Culture Matters to Law: The Difference Politics Makes

Why Culture Matters to Law: The Difference Politics Makes Dorothy E. Roberts Why does culture matter to law? Notice I have not bothered to ask whether culture does in fact matter. As I will soon elaborate, critical legal scholars have definitively shown that neutral legal principles that pretend to disregard culture in fact privilege dominant cultural norms. This has also been the result of court decisions that place culture outside the law's reach. In Plessy v. Ferguson1 the United States Supreme Court upheld the separate but equal doctrine on the ground that the Fourteenth Amendment could not possibly have been intended to abolish social conventions proscribing the commingling of the races. "Legislation is powerless to eradicate racial instincts ... and the attempt to do so can only result in accentuating the difficulties of the present situation ," the Court explained.2 It therefore concluded that, although the law required blacks' political equality, "if one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane."3 The Court reasoned, in other words, that the law should not interfere with culture-in this case, the social segregation of blacks from whites. Thus, the Court's separation of culture from politics sanctioned both private and official discrimination against blacks. Culture mattered to the Court's decision, whether to affirm the law requiring blacks to ride in separate railway cars or to overturn it. There was no way to avoid the law's impact on the cultural mores of racial separation. That 1. 163 U.S., 537 (1896). 2. 163 U.S., 551. 3.163 U.S., 552 (emph. added). 86 CULTURAL PLURALISM, IDENTITY POLITICS, AND THE LAW settled, the inquiry becomes not whether culture should matter to law but, rather, how it should matter. Anthropologists now understand culture in terms of the common meanings, or worldview, that people create and reproduce as members of societies as well as more tangible features such as custom, tradition, and language. Culture is "a set of shared understandings, whether consciously held or not, which makes it possible for a group of people to act in concert with one another."4 What distinguishes different cultures is not so much their various material artifacts as the different meanings that they attach to things and experiences that are the same across cultures .5 As one commentator puts it, "culture provides the meaning of and reason for social action."6 My thesis in this essay is that political action provides the meaning of and reason for culture. I shall attempt to sort through arguments about the importance of culture to law in order to make one central claim: our determination of why culture matters to law must depend on our political objectives. More specifically, I contend that the goal of achieving substantive equality should guide our deliberations about culture's role in creating and interpreting law. Another possibility is that culture is valuable independent of political objectives and that we should therefore analyze culture's relationship to law without regard to power arrangements. Why not celebrate human cultural difference because it is desirable in and of itself? As Anthony Appiah suggests in his defense of cosmopolitanism, "the reason nations matter is because they matter to people. Nations matter morally, when they do, in other words, for the same reason that football and opera matter: as things desired by autonomous agents, whose autonomous desires we ought to acknowledge and take account of, even if we cannot always accede to them."7 I do not think I would dis4 . Gerald Torres, "Local Knowledge, Local Color: Critical Legal Studies and the Law of Race Relations," San Diego Law Review 25 (1988):1043, 1062. For other descriptions of culture as shared meaning, see Ulf Hannerz, Cultural Complexity: Studies in Social Organization of Meaning (New York: Columbia University Press, 1992); Jeffrey C. Alexander, "Analytic Debates: Understanding the Relative Autonomy of Culture," in Culture and Society: Contemporary Debates, ed. Jeffrey C. Alexander and Steven Seidman (Cambridge: Cambridge University Press, 1990). 5. Linz Audain, "Critical Cultural Law and Economics, the Culture of Deindividualization , the Paradox of Blackness," Indiana Law Review 70 (1995): 7°9,715-17. 6. Torres, "Local Knowledge," 1061. 7. Kwame Anthony Appiah, "Cosmopolitan Patriots," Critical Inquiry 23 (1997): 617, 624. I do not mean to suggest that Appiah's understanding of the moral significance of nations is unrelated to politics, for it supports his defense of liberal democracy that protects the rights of cosmopolitans. [3.17...