Academic journal article Washington and Lee Law Review

One Law for All? the Logic of Cultural Accommodation

Academic journal article Washington and Lee Law Review

One Law for All? the Logic of Cultural Accommodation

Article excerpt

I.

Our belief in the rule of law commits us to the principle that the law should be the same for everyone: one law for all and no exceptions! It would be quite repugnant if there were one law for the rich and another for the poor, one law for black Americans and another for whites. Formally at least we repudiate all such classifications, and to the extent they still exist in our law or in the way our legal system is administered, we believe they disfigure, or at least pose grave difficulties for, our commitment to the rule of law ideal. We value this generality not least as a bulwark against oppression. We figure that we are less likely to get oppressive laws when the lawmakers are bound by the same rules they lay down for everyone else.2 We are less likely to got a ban on foreign travel when there is no exemption for legislators or party members. We are less likely to get a ban on abortion when the laws apply to the wives and daughters of male legislators as well as to the wives and daughters of the ordinary citizens.3

At the same time, we live in a society in which there are many different cultures and a bewildering variety of religions and belief systems, each capable of attributing peculiar significance to the actions and circumstances in which the law of the land is interested. Two pieces of behavior that look like the same action may have different meanings for those who perform them. Two sets of circumstances that seem identical from the point of view of one culture may look quite different when described in the language of another. So how do we know when the law is the same for everyone? Is it enough that it treats the same behavior in the same physical circumstances identically; or does the rule of law only require that we treat identically pieces of behavior that have the same significance for those who perform them and, perhaps also, for those on whom they are performed?

For example, some children get together with an older adult, and he supplies them with alcohol. A priest passes a cup of wine to young communicants. Are these the same action or different actions? A man is found in a public place with a knife concealed on his person. Is this knife a dangerous and offensive weapon? Or does it belong to a Sikh, carrying a kirpan, in fulfillment of religious obligation?

Of course the law can make an exception for the Sikh or for the sacramental use of wine. Laws have all sorts of exceptions, conditions, and qualifications.4 Provided they too are stated in general terms and administered impartially, their existence does not violate the principle of the rule of law with which I began, at least not formally. Still the strategy of exception can sometimes present more difficulties than it is capable of resolving. Brian Barry, in his new book Culture and Equality, brings up the case of a young man arrested at a demonstration in Trafalgar Square in 1997, carrying a three-foot-long double-edged sword.5 When the young man convinced a London court of the sincerity of his belief that he was King Arthur's twentieth century reincarnation and, as such, the Honored Pendragon of the Glastonbury Order of Druids,

the judge found he had no alternative but to give Arthur (as I suppose we should call him) the benefit of Section 1395)(b) ofthe Criminal Justice Act of 1988, which provides the following statutory defense to a charge of carrying in a public place "any article which has a blade or is sharply pointed":

it shall be a defense for a person charged with an offence under this section to prove that he had the article with him (a) for use at work; (b) for religious reasons; or (c) as part of any national costume. …

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