The Importance of Culture for the JUSTICE SYSTEM

Article excerpt

Cross-cultural jurisprudence is a vital subject in the twenty-first century. With increased migration, regional integration, and tourism, individuals cross borders more frequently. As a consequence, opportunities for cultural misunderstandings are greater, and legal systems must be prepared to consider cultural arguments.

Trujillo-Garcia v. Rowland dramatically illustrates the potential risk of a miscarriage of justice if judges exclude cultural evidence from the courtroom.1 Two MexicanAmericans were playing poker. One man, Padilla, lost $140 to the second man, Trujillo-Garcia. Padilla returned a few days later demanding his money back, but Trujillo-Garcia refused. At that point Padilla said "chinga tu madre," an extremely offensive insult in Spanish. Trujillo-Garcia took out a gun and shot Padilla to death. At trial he tried to raise the provocation defense which, if successful, reduces a charge of murder to manslaughter. Although Trujillo-Garcia could show that he had been provoked to commit an act of vio- lence, he was unable to prove that the objective reasonable person would be, thus failing to meet the requirements of the defense.

Some may object to the premise of provocation, namely that the law reduces a charge when a person is incapable of controlling his behavior, but it may also be considered objectionable that only insults understood by the domi- nant culture count in the legal system. It arguably violates equal protection not to allow cultural considerations to show the magnitude of the insult in the Spanish language when other types of provocation, e.g., a man discovering his wife with a lover, are considered clear and do not require additional contextual information.2

The concept of culture

It is difficult to overstate the importance of culture and the subtle pressure it exerts on individuals. Culture is pervasive and all-encompassing; it shapes perceptions and affects behavior in every society, even though individuals are largely unaware of these processes. Although culture influences individuals, this does not mean it deter- mines human behavior. The most that can be said is that cultural imperatives predis- pose individuals to react to phenomena.

For purposes of this article we offer the definition of culture formulated by the Canadian Commission for UNESCO: "Culture is a dynamic value system of learned elements, with assumptions, conventions, beliefe and rules permitting members of a group to relate to each other and to the world, to communicate and to develop their creative potential."* This is clearly a definition of traditional culture that links it to a "way of life" or "value system." Other types of culture include high culture, which refers to novels, plays, opera, and ballet, and popular culture, which includes television, film, comic books, and pulp fiction. While these are all forms of culture, this article is primarily concerned with traditional practices that apparently clash with the law.

Individuals value their cultural traditions, feel strongly attached to them, and wonder why they should be expected to discard them. Those who presume that individuals can easily modify their behavior do not appreciate the force of enculturation. Anthropologists have documented the many ways in which individuals learn the mores and folkways of their cultural communities. Their intuitions about what is right and wrong, for example, what type of marriage is acceptable, what animals may be eaten, what attire is proper, what is indecent behavior, and so on, reflect the unconscious acquisition of distinctive cultural categories. Although most are not cognizant of the processes of enculturation, everyone is strongly affected by them.

There are many manifestations of the effects of culture.4 For instance, the notion that brides should wear white is not universal. In China, brides traditionally wear red. While 13 is an unlucky number in the U.S., other societies have a different unlucky number, e. …