The Cultural Defense by Alison Renteln Analysis

Countries such as the United States, Australia, and Canada are made up of many cultures and diverse groups of people. Culture is one of the major components of someone’s identity as it is a way to stay connected and feel a sense of belonging. Of course, practicing a culture different from the mainstream culture is not the same as it would be where the culture originated, but it is still possible for the most part. The question is how freely are states required to allow the practices of cultures that go against the nation’s law, and to what extent does culture justify one’s actions? This brings the idea of cultural defense; the use of culture as evidence in courts. Alison Rentein, the author of “The Cultural Defense,” argues that there should be maximum accommodation in terms of culture in legal systems.

As a strong advocate for cultural defense, Rentein attempts to push for its use in courts. The reason that people disagree with having the cultural defense to be used in courts is due to the fact that the idea of culture has been diluted to a social construct used to favor those in power. Here she states that culture is in fact “an abstraction” as there are a vast number of different cultures and various versions within those as well. As they are not stagnant, it is the norm and way of life for those in different regions. Another opposing argument she presents is that introducing culture in a legal matter would negatively affect the progress of women’s rights. In response to this, she rejects the thought completely as it is based on the idea that all cultures are patriarchal or “male culture.” Rentein’s core basis of her support for the cultural defense is that culture is the one of the major aspects of one's being from language to mannerisms. Enculturation is the acquiring of norms and values of a group or culture. Being raised in a specific way of life, will dictate how one behaves, and interacts with concepts or other people as culture plays a crucial position in the agents of socialization. Once someone moves to a different region, they are going to experience a culture shock. With this said immigrants are expected to acculturate, and assimilate to some degree. Rentein believes that everyone should be able to practice their culture freely as long as it does not violate human rights. The stance of complete allowance of practice goes over into courts as well. As the courts use the “objective reasonable person” to determine the acceptability of the intent of the individual, putting those of a differing culture at a disadvantage since they would have a different objective being. The “objective reasonable person” is based on the norm and values of mainstream society. To assist those with another culture the cultural defense would come into play to present the reasoning behind one's illegal action. This could be displayed with an expert's opinion or by consulting a leading member of that community.

The practicality of using the cultural defense in courts is highly difficult as there is no proper way to define culture. Issues in finding a working definition consisted of  Cultural pluralism, cultural heritage, cultural policy, “the right to culture”, and the relations between the cultures. When creating a legal definition for the culture it is crucial not to make it too broad to the point that it allows people to manipulate the courts with it. On the other hand, the definition needs to be broad enough that it is inclusive of the vast variety of cultures there are. It is understood that there are two aspects of culture consisting of mundane things or major activities or practices associated with the culture. When using it in a legal context the more day to day aspects are more likely to be considered as it deals with certain mannerisms. The definition that Rentein is content with is ‘Culture is a dynamic value system of learned elements, with assumptions, conventions, beliefs and rules permitting members of a group to relate to each other and to the world, to communicate and to develop their creative potential”(Canadian Unesco). Though this definition is the working one of the time it can be argued that it is still greatly vague. Vague does not work in a legal setting as it needs to be rigid enough to know what can or cannot be applied to the defense.

 At the moment culture is used in the courts but used mostly in terms of guilt. It is asked to what extent should culture justify actions. In a personal opinion, culture should be freely practiced within the laws of the country one is residing in. The reason for this would have to be that some laws are made to protect individuals from traditions and other practice that cause harm. An example of this would have to be genital mutalation. Though many cultures of various countire practice this act, in most western states it is considered an unacceptable practice. There are many other practices that are less extreme such as the scaring of one’s face in body, but in the United States it can be seen as child abuse. It is understood that the author is not making the point that culture should excuse acts but thiis woul have to be in critique of the idea that there should be maximum accommodation and complete freedom of practice. 

Other than culture being currently used in courts under the guilt, it has also been used multiple times under the insanity plea. The insanity plea is traditionally used in the idea that on eis mentally ill of not competent enought to make the right decision. It is also used in the context that one has no control of their actions. Alison Rentien has a severe issue with the usage of the insanity plea in terms of culture because it implies that those of cultures other than the mainstream are utterly mentally ill. Though to how it is currently used thisimpression can be rcieved but this provides leeway to a non-normative defense. The idea of this stems from the definition of insane which can either mean mentally ill or out of the norms. Due to the second definition, it can be understood why the cultural defense would fall in this criteria since basis of the argument is that the norms are different from the mainstream appearing to be insane. Reiterating, when culture is used under the insanity defense, it is not stating that those of a different culture are instantly mentally ill but that their norms are differing of the mainstream norms. This provides a solution to the issue presented by Rentein that the “objective reasonable person” would be different to those practicing a culture outside of mainstream society.