Law's Culture and Cultural
Feminist activists and scholars have deep ambivalence about the use of culture in legal cases when seeking state intervention in domestic violence (Coleman 1996; Volpp 2000a). We understand that violence is a gendered phenomenon— that is, inflected by culture (Bhattacharjee 1997; Dasgupta 2002; Rudrappa 2004b), yet we are profoundly uncertain about how the state should arbitrate on matters of culture with regard to domestic violence. My own ambivalence regarding culture's use in courtrooms arose when I served as an expert witness in Austin, Texas, in 2002, in the defense of a South Asian American woman, Sailaja Hathaway, who had tried to poison her children and herself. For the defense team, Hathaway's culture was ostensibly one of the reasons for her actions. While I recognized the necessity for using culture in understanding her feelings and state of mind, I was uncertain about what it meant to make cultural arguments in court in such a situationally expedient yet politically uncritical manner. The case that rose to my mind in stark contrast was that of another Texan mother, Andrea Yates. Yates had drowned her five children in the bathtub, and psychological arguments, not culture, were used to explain her homicidal act.
Building on my experience of providing cultural testimony in court, I note that given that the United States is a nation of immigrants we are compelled to use culture in understanding the defendant's state of mind when violence occurs. However, raising culture in the courtroom invariably raises questions on what we mean by immigrant culture, and whether cultural codes are thickly coherent—that is, have universal acceptance and adherence within a particular racial/ethnic group. Moreover, this also raises the question of law's culture. Stated more specifically, American law, too, has a culture that stands in authoritative judgment over its citizen subjects. I do not just mean the principle of whiteness, but also a law that individualizes and is set up as an adversarial system, demanding that real-life messy stories be narrated in teleological ways, with causal mechanisms in play.