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Toward Comparative Jurisprudence: Differing Approaches to Culture in Law and Society ScholarshipLaw and the Culture of Israel. By Menachem Mautner. Oxford: Oxford University Press, 2011. 280 pp. $71 hardback.Indigenous People, Crime, and Punishment. By Thalia Anthony. Abingdon: Routledge, 2013. 280 pp. $145 hardback.Colonial Discourse and Gender in U.S. Criminal Courts: Cultural Defenses and Prosecutions. By Caroline Braunmuhl. London: Routledge, 2012. 182 pp. $140 hardback; $54.95 paperback.In the twenty-first century, governments wrestle with the question of how to make sense of law in a multicultural world. As they figure out proper interpretations of cultural conflicts, these matters often emerge in the courtroom. Meanwhile researchers in comparative jurisprudence, criminology, and postcolonial studies explore the degree to which justice systems succeed in accommodating claims of minority groups and indigenous peoples. Here, I consider this burgeoning scholarship on culture and jurisprudence. The works I discuss illustrate how some analysts investigate clashes between groups and the state in their interpretation of cultural conflicts.In Law and the Culture of Israel, Menachem Mautner, calls for a reconsideration of the multicultural state in the context of Israel. This erudite, interdisciplinary work draws on cultural studies, legal history, and political theory to interpret the evolving nature of multiculturalism in Israel. He suggests that multiculturalism has unique features because of the complex sets of divisions there. Debates among legal elites reflect philosophical differences between secular and religious Jewish communities over the national identity and the fact that the political system has excluded Arabs, for the most part.Israel has experienced difficulty in part because of having modeled its judicial system after the United States, i.e., the "Anglicization and liberalizing of the law" (pp. 38-41). It is also one of few modern democracies without a written Constitution. His view is that the struggle in Israel has been to reconcile the Jewish state' and the 'Democratic State', and he demonstrates this with nuanced explanations of political movements, economic development, intellectual history, and judicial politics. Without assuming knowledge on the part of the reader, Mautner lays out conflicts that emerged in legal circles and explains their significance for the shifting nature of Israeli national identity. The work is lucid and well structured. In Chapter 5 he shows how the group advocating a religious state that follows Halakhah and traditional Jewish culture clashed with the secular Jewish group that advocated the familiar tenets of liberalism. The latter suffered from what he terms "the problem of cultural thinness" (p. 27) by comparison with the religious group that followed a long tradition.Mautner offers an incisive analysis of flaws in the legal system. He questions the dramatic expansion of doctrines like standing, improper interpretation of other doctrines, and adherence to legal formalism. Of particular concern is the behavior of the Supreme Court during the 1980s and 1990s, the focus of Chapter 4. Toward the end of the book, Mautner turns to the "culture wars." Invoking Gramsci's concept of hegemony, he contends that Israel moved from hegemony to multiculturalism. Indeed, this is the moment when the question of Israel identity came to the fore again (p. 115). Ultimately, Mautner expresses a worry that Israel lacks a shared value system. Making reference to Rawls and his notion of an "overlapping consensus," he expresses concern about Israel's ability to fulfill its responsibilities as a democratic state.The final two chapters focus on minority rights in Israel. Mautner argues for greater recognition of the rights of Arabs by taking steps such as including Arabic text to the anthem, adding signs of Arab cultural heritage to the national flag and national emblem, and making Arabic an official language of the same status as Hebrew (p. … |
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