Sociology of law and identity

Introduction
Every traditional culture has its norms, which ultimately affect what is considered right or wrong. A clear distinction of this is best illustrated in the Middle East as compared to Western culture, where in the Middle East certain behaviors, e.g., kissing in public, in public is illegal as compared to in the west. This is basically as a result of the differences in the traditional cultures of these two regions, bearing in mind that religion is a core part of any culture. To this effect, it would be argued that culture affects law and identity, and to ensure that there is fairness and justice in any given society, then the cultural context of the people cannot be ignored. In her book, The Cultural Defense, Alison Dundes Renteln argues that \\\"Culture shapes individual identity in crucial ways. The failure of the law to recognize this has resulted in injustices\\\" (Renteln 2004, 219). This essay, therefore, is an explanation of this quotation, and the explanation will be done by using the book The Cultural Defense by Renteln (2004).
Culture and identity
It is no doubt that traditional culture exists, and even though it is an invisible aspect of society, it can be manifested through language, music, relationships between the various members of the community. The only sensible question, therefore, is, to what extent does culture share individuals' identity and, by extension, the justice and judicial system? The effect of culture on an individual can be traced back to the time of birth and the initial stages of intellectual development. As stated by Renteln, each individual learns through socialization/enculturation by the society in which they are born (2004, 12). This process of learning takes place mainly at the subconscious level, and it functions to create the self-awareness of a person, thus, identity.
Some of the common ways through which culture and the effects of enculturation manifest are gestures, symbols, and their meaning, taboos, food, dressing, and humor (Renteln, 2004, 12). While these aspects might seem mundane, especially within the specific region in which the respective society is famous, their real effect and meaning are adequately acknowledged in a foreign land. For example, while it is a familiar gesture in western culture to indicate OK with the thumb and the index finger joined to form a circle, in some Latin American countries, it's considered to be an insulting and obscene connotation (Renteln, 2004, 12). For the average westerner, this gesture is an indication of satisfaction and wellness, but in Latin America, it is demeaning and degrading, an aspect that can be used as a basis or evidence to a criminal case.
It is, however, understood that just as an individual can learn about their culture, they can also learn about other cultures. This is common through such aspects as assimilation. However, the concept of adaptation is not to be confused with the original culture of an individual. For example, just as an individual can learn their traditional cultural language, so can they also learn the language of another culture. As argued by Renteln, an individual can be bicultural, just as they are bilingual (2004, 13). However, in this essay, it will be argued that the typical assimilation is characterized by a minority learning and becoming encultured to the culture of the majority. The typical case in point is the relation between France as a colonial master and the region it colonized, where the person in the colonies was assimilated to the France culture.
Culture and the law
Because of the effect of culture, individuals are predisposed to act in line with the teachings of their culture. While this does not expressly imply that a person has to be excused for illegal or wrong cultural actions, it is also noteworthy that at the core of each culture is the concept of loving your neighbor and doing what is right. This concept would be argued to be in line with the common referral in criminal justice, \\\"the law of nature.\\\" According to Renteln, a similar concept is used when cultural issues emerge in law, where the jury is asked to base their judgment on what the \\\"objectively reasonable person\\\" would do (2004, 15). A critical analysis of this concept reveals that it is merely a mirage used to rub the party's ego coming from a different culture. The reference to an objectively reasonable person only means a person from the dominant culture.
For courts to ensure that all their decisions are fair and just, they must take into account the cultural effect on the actions of the affected person. For the cultural aspects of a case to be adequately addressed, not only cultural evidence but also the cultural logic of the case must be brought in and taken seriously (Renteln, 2004, 15). Even though this is often lacking in the domestic law of most jurisdictions, it is adequately taken care of by the International Covenant of Civil and Political Rights, article 27. It must, however, be acknowledged that some of the traditional cultural ways can be very brutal and savage, and therefore, unless they contradict human rights, they should be taken into account in legal proceedings.
The argument for including traditional cultural defense is founded on the relativistic view of the law. The argument for cultural defense is important as it serves to answer the critique on whether a tradition would qualify as a violation of the rule of law in a dominant society. First, it is recognized that, as per the adage, \\\"when you go to Rome, do as the Romans do,\\\" and thus, when a foreigner, refugee, or an immigrant finds themselves in a dominant legal system, it is only logical that they comply with the legal requirements. However, this essay would argue that, in the case of natives and traditional minority communities within a dominant legal system, e.g., Native Americans in the USA, the Torres Strait Islanders in Australia, and the Indigenous Aboriginals in Canada, should be allowed to factor in traditional cultural aspects in the pursuit of justice. This argument is made under the acknowledgment that the imposition of a foreign legal system on the original owners of the land is nothing more than typical colonialism. However, allowing these communities to practice their traditional cultural laws on issues that do not conflict with the standard law lies in the same dimensions as military courts, based on the understanding and acknowledgment that the modus operandi is significantly divergent, thus, warrants special treatment.
Culture oriented conflicts in the court
One of the areas where culture has played a crucial role to conflict the execution of justice is in homicide cases. Various factors drive an individual to commit murder, and culture certainly is one of these. In murder cases, culture defenses may be used, e.g., the argument for insanity as the driving force to blame (2004, 24). This means that, when the perpetrator is suffering from a cognitive and volitional impairment, then the action resulting in murder may not be voluntary. Other cultural differences that are applicable in homicide include automatism (p.26), and battered woman defense (p.28). However, this cultural defense is hard to make as the typical procedure for murder requires suspected to be tested clinically to determine their mental status. The other cultural defense in a homicide case is a provocation, which has been applied successfully to reduce murder cases to manslaughter.
Culture has also been used to justify a crime. One of the common defense in homicide cases is the self-defense argument (p. 36). For example, when witchcraft and other similar practices were common in Europe, many were killed and their murder \\\"justified\\\" as an act of self-defense as otherwise, they would fall to the evil works of wizardry. While it is understandable that any person who takes the life of another should receive some form of punishment, culture is conflicting in the form of punishment to be meted.
The other aspect where culture and law, conflict, involves cases of minors. In the traditional cultural setting, it is the role of the parent to look after the child and the child to render respect to the parent's authority. This is a source of conflict in the courtroom in case that involves child abuse by parent or guardian (p.48). Some of these cases that are regarded as abuse include, e.g., scarification which in African culture is part of cultural identity (p.49), female circumcision which in the cultures it is practices is considered a rite of passage into adulthood (p.51), discipline which in traditional culture is considered to be instilled through the use of corporal punishment (p.54), folk medicine which includes coining and cupping (p.57), and touching of children which in some culture, e.g., Taiwan and Filipinas is considered sexual abuse (p. 59). These cases conflict with the western legal system, which considers child marks as a physical indication of torture and abuse. Besides, failure to seek medical attention whenever a child is sick, it is considered a case of neglect.
Other sources conclude drug usage which in some culture it is allowed, e.g., khat among middle east cultures (p.74), treatment of animals, e.g., cows in India which are considered scared (p. 94), marriage which is some culture; it is the role of the parents to choose marriage partners for their children even at childhood (p.114), attire, e.g., the growth of beard among Muslim men (p.140), and caring for and management of the dead, e.g., some culture like to die in the peace of their home and autopsies are prohibited (p.159).
An argument for the cultural defense
These sources of conflict demand that the cultural background of especially the defendant must be taken into account as a failure to do so amount to a miscarriage of justice. While in the administration of justice, the law must be culturally sensitive, the main reason why culture has to applied is to ensure that all citizens within any given jurisdiction are equal before the law (p. 187). Moreover, it is important to ensure that the punishment meted on crime is proportionate and justifiable.
It is, however, to be argued that, even though some of the cultural defenses might sound absurd and nonsensical, it is important that individuals are granted cultural rights and tolerance the right to practice that culture protected, as long as it doesn't contradict any human rights and liberties.
Conclusion
Culture plays a crucial part in the upbringing of each person. Without culture, a person will be ungrounded and without meaning. It is, therefore, based on this understanding that it is argued that the aspect of culture in the justice administration cannot be ignored or overlooked. Culture is also an integral part of determining what is right and what is wrong, which is the basis of the legal system. As a result, in the application of the same, the individual's culture must be factored in. Especially when such an individual is from a minority culture that is not addressed in the formulation of the applicable legal system. However, it is acknowledged that the application of culture in the justice system must not be made to deny others their right or to prevent the effective delivery of justice. This essay, therefore, adopts the conclusion that \\\"Culture shapes individual identity in crucial ways. The failure of the law to recognize this has resulted in injustices,\\\" as stated by Renteln.
References
Renteln, A. D. (2004). The cultural defense. Oxford University Press.