Re-Placing Cultures

Increasingly, our law is so tied up with the religiosity of this society that it’s not just repositioning law, it’s
repositioning the role of religion in American culture.

—Martha L.A. Fineman, Robert W. Woodruff Professor of Law


Vol. 7 No. 5
April/May 2005

Special Issue

Re-placing Cultures
A dialogue among disciplines
Guest Editor, Bruce M. Knauft, Executive Director, Institute for Comparative and International Studies, Samuel C. Dobbs Professor of Anthropology

On transculture
Mikhail Epstein

I think the boogieman of AIDS has more resonance in the United States than it might have in a community in Africa, where people are accommodating to it.
Deborah McFarland, Associate Professor of International Health

Increasingly, our law is so tied up with the religiosity of this society that it’s not just repositioning law, it’s
repositioning the role of religion in American culture.

Martha L.A. Fineman, Robert W. Woodruff Professor of Law

Re-placing National Culture
Globalization and collective identity in the Netherlands
Frank Lechner, Associate Professor of Sociology

Digital Nationalism
Re-placing place in the Indian diaspora
Deepika Bahri, Associate Professor of English

Further reading

God’s Chosen Tongues
Hebrew and Arabic in the Qur’an
Devin J. Stewart, Associate Professor of Arabic and Middle Eastern Studies
Further reading


Return to Contents

BK: How does your work in legal theory intersect with global scholarship?

Martha Fineman: It is interdisciplinary and increasingly international in focus. Currently I’m involved with a group of scholars who have come together around something called the New Legal Realism. We are building on the Law and Society movement, which is interdisciplinary, started by anthropologists interested in the role of the law in society. We want to look at how we can use social science information broadly construed—to include things like anthropology and history—to effect progressive political change. Legal realism is premised on the idea that law is located within society, and that society and its institutions profoundly affect the way that law is formed and applied. We are interested in the distinction between the law on the books and the law in practice. There’s a “gap” between what law mandates and what actually is revealed by social science methodologies that look at everyday practice. The New Legal Realism group is meeting at Emory in June—this will be our third national conference. Scholars from schools such as the University of Wisconsin, Berkeley, SUNY Buffalo, and Cornell are involved in this growing movement.

BK: This concept runs counter to the perception that law has to be consistent with the past.

MF: Not necessarily. There are many aspects to the arguments about precedent. Some argue that without a strongly developed notion of precedent you have undemocratic mechanisms changing law. They refer to “runaway judges” acting in arbitrary ways and assert that these judges are elitist and anti-democratic. The mantra of those who make such arguments is that judges should just follow the law. But within that catchall phrase is this notion that law is determinative—that you can simply apply it, as though there is no need for interpretation. Of course, many of us think interpretation is exactly what law is about. One of the reasons we have lawyers is that there is often a range of possible interpretations and multiple arguments about which one should be adopted.

An important version of this debate takes place on the constitutional level. Supreme Court justices Scalia, Rhenquist, and Thomas argue that we should be “originalists”—that what the drafters of the constitution said and meant at the time of drafting should be at the heart of our interpretation. Justices like Ginsberg or Stevens, by contrast, view the constitution more as a living document that should evolve as situations change. If you look comparatively at some other societies, you may see legal systems better able to accommodate changing patterns of behavior than ours because they do not make a fetish out of precedent in the same way. In fact, increasingly European and other courts are receptive to comparative arguments, looking at what’s going on in the jurisprudence of other societies and thinking about what might be emerging as the “best practice” from an international perspective. If you read court opinions from South Africa, Australia, Canada, the United Kingdom, or France, you’ll see references beyond national law to what’s going on in other industrialized democracies: How does the community of nations handle racial inequality? Gender issues? But Thomas, Rehnquist, and Scalia reject arguments based on norms of international human rights in interpreting American constitutional law, calling those norms “foreign fads.”

BK: Why is it more difficult in the U.S. to reposition or re-place law?

MF: On some level, the United States is acting more like Iran than like the U.K. Increasingly, our law is so tied up with the religiosity of this society that it’s not just repositioning law, it’s repositioning the role of religion in American culture. That’s particularly true in areas where law regulates intimacy, such as family, sexuality, and gender laws. In addition, because our constitutional approach is conservative it is unable to facilitate change in these areas in particular. For example, take the way we think about equality. We emphasize sameness of treatment—an anti-discrimination approach that is anchored in the Civil War era and the Fourteenth Amendment jurisprudence. The paradigm for prohibited discrimination is based on race. Yet in the international human rights context a concept of “substantive equality” for all citizens is evolving. South Africans enacted a constitution built on the idea of restoration and reparation. They begin with the premise that they have lived in a racist society in the past and those who have been victimized by that society need special attention and protection. In the United States such affirmative action for historically disadvantaged groups is attacked as setting up reverse discrimination. We want our government to be neutral unless there is overt discrimination on impermissible grounds—they want theirs to act to ensure greater equality for all. It’s a profound difference in terms of the government’s relationship and responsibility to its own citizens.

Interview conducted by Bruce Knauft.