In Raymond Williams's renowned adage, culture is "one of the two or three most complicated words in the English language".1 Within a legal setting,2 the rhetoric on culture goes beyond a purely abstract significance to potentially having tangible ramifications, in particular for minority and indigenous groups.3 In a human rights context this is certainly the case. While international human rights standards articulate numerous references to "culture" in the sense of its broad anthropological usage,4 thinking in that area is still at an embryonic stage and is "confusing rather than illuminating".5 For human rights lawyers this is equally frustrating and regrettable, given the norm's undoubted potential.
Against this challenging legal landscape, culture has again returned to the political frontlines. The hostile post-9/11 atmosphere has seen the emergence of the concept as a marked feature of the securitization debate, with some Western states reconfiguring notions of national identity.6 In Britain, for example, Tony Blair marked the attacks in London by reassessing the very concept of British cultural identity. These have been 'top-down' state-led abstractions, with minorities scarcely involved. Following the monumental ethnic victories of the 1960s, is it possible that we are witnessing the beginnings of a redrawing of the culture map? Of course for states, the place of 'the other' has been an eternally delicate matter, what with its perceived complications for the national vision. Thus, the question is: how do we progress from here?
The article is aimed at the chasm between the currents needs of minorities in this hostile setting and the uncertain character of the normative protection of culture. The discourse from anthropology has rightly highlighted the value of its field-based theory for human rights law.7 The author strongly echoes this sentiment, as its thinking is 'grounded' in the day-to-day life of communities, captured through the eyes of the reflexive anthropologists who typically spend substantial periods of time living among their subjects. In the context of the ongoing and intense cultural dialogue the time is ripe for cold reflection, particularly in terms of the legal protection of culture. With a view to bringing an element of clarity to the murky area of culture, the author suggests a model for human rights law based on a fusion of classic and contemporary thinking. Because the configuration is thought to capture the necessary scope of legal protection (i.e. what the law must protect), its application is likely to result in enhanced protection for the rights of minorities and indigenous groups. Thus far, there has been strikingly sparse engagement by anthropologists in the broad debate on culture and multiculturalism.8 It seems timely to address this unfortunate lacuna.
To that end, the article considers, in the first section, the contemporary, post-9/11 significance of culture. It then examines the classic 'total way of life' model and its relevance for legal process, before turning to the distinctive meaning/behaviour schools, again out of empathy with the new legal setting. In the fourth section, the paper considers the 'new approaches' that have emerged within anthropology since the 1970s, including a more dynamic understanding of culture that argues for amalgamation with the classic school. The fifth section goes on to examine the issues that arise from the role of the anthropologist, while the sixth section considers the controversial question of cultural relativism. Finally, the author addresses the crucial matter of the cross-disciplinary transference of the model to a legal context.
II. The (Re)Politicization of Culture
The new millennium has witnessed the extraordinary return of culture (if ever it vanished) to the political centre-stage.9 For states, the debate surrounding the place of 'the other' has been a perennially sensitive one, and one that has been revisited in recent years. …