[Editor’s Note: I-CONnect is pleased to feature a symposium on Constitutional Ethnography. This is the seventh entry of the symposium, which was kindly organized by Deepa Das Acevedo. The introduction is available here].
Alison Dundes Renteln, University of Southern California
When considering the intellectual history of the law and society movement, we encounter familiar adages. One of the most well-known is that we focus on not only “law on the books,” but also “law in action.” The mantra of our discipline is that we should conduct empirical research about how legal actors and institutions function; for most projects, it is insufficient to study doctrine alone. The contextual approach is appealing because it challenges “the presumption of universality,” the notion that the “reasonable person” reacts similarly to trauma, harassment, domestic violence, and insults.
Taking a contextual approach compels us to acknowledge the inner cultural logic of a community. This has long been understood from classic works like Montesquieu’s The Spirit of the Laws and others. It is no secret that one of the most influential pieces of modern scholarship calling for richly descriptive, historically situated research is that of Kim Lane Scheppele. Her seminal article “Constitutional Ethnography” offers a thought-provoking characterization of the comparative method, emphasizing its importance, and questioning parochial assumptions about law and legal institutions.
This call for contextual investigation of socio-legal phenomena is not predicated on the rejection of universals. In all societies law exists, though its institutional manifestations vary. A sense of injustice is universal, although what is regarded as a serious injury varies. We have learned from pioneers such as Laura Nader about differing forms of dispute resolution.
Research on rights consciousness and the transformation of disputes also reflect differing sensitivities about injustice within the same society
When I challenged “the presumption of universality,” I encountered resistance. Some misconstrued my analysis as “prescriptive relativism,” even though I explicitly distinguished my position from that in a reformulation of relativism in the American Anthropologist (1988) and International Human Rights: Universalism Versus Relativism (1990, 2014). This reinterpretation reflects a similar impulse to that of Scheppele. I proposed conducting comparative empirical research on values to identify “cross-cultural universals” to support human rights.
Research on the cultural defense also emphasizes contextual analysis. Litigants invoking this defense ask courts to consider their cultural backgrounds to assess culpability, to determine condign punishment, to calculate appropriate damages, or to grant an exemption. For judges to decide these questions, they may need experts. If attorneys fail to introduce cultural evidence, then how appellate courts may consider it? Techniques such as “taking judicial notice” of commonly known facts can be introduced.
For some questions, the extended case-method is a suitable approach.[i] In “A Hmong ‘Marriage by Capture’ Case,” Deirdre Evans-Pritchard and I argue that the standard doctrinal analysis of case involving alleged kidnapping and rape obfuscated the reasoning. The custom is as follows: After a Hmong man and woman exchange gifts, on a certain night, the man carries the woman off from her parents’ home. To prove she is virtuous, she must engage in a ritualized protest, even if she wants to marry the man. The man, to demonstrate his virility has to forcibly take the woman. They are supposed to go to his family’s home to spend three days together to consummate the marriage. Afterwards marriage negotiations between the two clans occur.
People v. (Kong) Moua (1986) dramatically illustrates the problem of disentangling the facts in cultural defense cases. Here, 21-year-old Kong Moua carried off 18-year-old Xieng Xiong as part of a traditional Hmong marriage ritual. When the first attempt failed because the parents prevented Xeng from leaving their home, Kong and two friends took her from the Fresno City College campus. Her American friends observed this, and called the authorities. When the police arrived a few days later at his family’s home, they asked her who the man was and whether she wanted to leave with them. She responded he was her husband and she preferred to stay with him.
After the woman, with her family filed kidnapping and rape charges against the man, the judge had to decide whether to admit evidence concerning Hmong marriage rituals. The prosecutor was disinclined to take the case to trial because the jury would have trouble understanding why the woman declined to leave with the police. Her testimony also contained inconsistencies. The public defender did not want to go to trial because he was wary of invoking a mistake of fact defense, given the requirement of objective reasonableness. The judge dropped the kidnapping and rape charges and Moua pleaded guilty to false imprisonment. He received ninety days, with credit for time served and was fined one thousand dollars.
The case has been misinterpreted. Sanford Kadish in Criminal Law (as cited in Gallin 1994, note 180), interprets the case as an illustration of mistake of law Yet the Hmong did not lack knowledge that rape was illegal in the U.S.; it was a mistake of fact as to the woman’s consent. As the circumstances were unclear to those unfamiliar with Hmong marriage rituals, even had this defense been invoked had the case gone to trial, the jury would surely had decided it was an “unreasonable” mistake of fact because the standard is based on what is “objectively” reasonable. This is precisely the fallacy that sociolegal scholars wish to challenge, a presumption of universality when it comes to “reasonableness.
This highlights an obstacle to the use of the cultural defense, namely the continued adherence to objective reasonableness. Inasmuch as the objective person is the persona of the Anglo Saxon, or European, it will be virtually impossible for a defendant to avail himself of a defense in the criminal law which is theoretically available to all. The interpretation of the mistake of fact defense seems to violate the principle of equal protection.
It may be that from a feminist perspective the mistake of fact defense in rape cases is offensive. Indeed, legislators might see fit to abolish such a defense generally. Until such time as the defense is rejected altogether, it is troublesome that it cannot be used by defendants who come from different cultures. One’s cultural background ought not to preclude the use of defenses that are supposed to be able to be invoked by all defendants.
Cultural defenses may seem more compelling to American scholars when they involved Westerners raising them in foreign jurisdictions. Some have been arrested for kissing in public, others have been flogged for defacing cars, and still others have faced the death penalty for possessing narcotics in countries such as Malaysia and Singapore.
While a kiss in public may be highly offensive, the naming of a toy seems even more harmless and an occurrence so trivial that it would hardly become a legal matter. Much to the surprise of Anglo-Americans, Gillian Gibbons, a 54-year-old British teacher in a private school in Sudan, got into trouble after she allowed her class of seven-year-olds to vote on what to name a teddy bear. The children selected “Muhammad.” Some of the parents considered the naming blasphemous because Muhammad is a sacred name associated with the Prophet in the Qur’an . Although Muhammad is a common Muslim name, some considered it insulting “to use it for a toy” as this constituted blasphemy. Gibbons was arrested and charged with inciting religious hatred under Article 125 of criminal law for “insulting the Prophet Muhammad.” A Sudanese court convicted her of insulting Islam and sentenced her to 15 days in prison and deportation, although the crime was punishable by up to 40 lashes, a fine, and six months in prison.
Gibbons’ position was that she had not realized that her conduct constituted blasphemy. Implicit in her stance was the notion that her action would not be considered a crime in her country of origin. Yet a blasphemy law was still on the books in Britain. When this came to the attention of governmental officials, there was a move to repeal the law and the Parliament voted to remove the charge of blasphemy from British law. After an international campaign to secure her release, she received a presidential pardon and returned home to England
These cases reflect the need to examine legal questions from a comparative approach. To determine what is appropriate punishment, it is necessary to consider both the fact that some acts are not illegal in some parts of the world and even if they are there are different understandings of proportionality.
Scheppele’s seminal article inspired us to think imaginatively about research possibilities. An exemplar, she embraces multi methods, qualitative and quantitative, inductive, and deductive. Her call for a more global approach to law and society has been extraordinarily important. In future scholarship we can only hope scholars will heed her advice.
[i] The extended case method is important for pedagogy as well. For instance, to teach about Buck v. Bell, 274 U.S. 200 (1927), it is crucial to discuss eugenics as a social movement, the fallacies of intelligence testing documented in the powerful monograph Mismeasure of Man (2006) by Stephen J. Gould, and the judicial behavior, revealed in Mary Dudziak’s brilliant piece about Justice Oliver Wendell Holmes and how the prevalent ideology of the day influenced his reasoning).
Suggested citation: Alison Dundes Renteln, Studying Law in Context: Revisiting the Reasonable Person, Int’l J. Const. L. Blog, June 30, 2023, at: iconnectblog.com/i-connect-symposium-peopling-constitutional-law-revisiting-constitutional-ethnography-in-the-twenty-first-century-part-viii-studying-law-in-context-revis/
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