The Cultural Defense (review)

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