• Critical Review Essay: Studying Cultural Pluralism in Courts versus Legislatures

    Ilana Gershon (see profile)
    Comparative law
    Item Type:
    Comparative legal studies
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    What insights can the literature on legal pluralism and cultural pluralism written by ethnographers of courts provide to ethnographers of legislatures? Focusing on Anglo- American legal systems, I explore how analyses of cultural pluralism can change when one moves from courts to legislatures. Three analytical shifts can occur when switching institutional perspectives. First, in Anglo-American courts, contexts are often made cultural as one technique among many to create a suitable interpretation that will lead to resolution. In the corresponding legislatures, contexts are often made cultural through a form of quantification. Second, in these courts, outsiders (not court officials) tend to embody culture, contributing to an ahistorical account of what culture is. In the legislatures, anyone, even representatives themselves, can be cultural, transforming being cultural into a political tactic that renders historical and social connections visible. Therefore, people are made cultural in different ways in the two settings. Third, in Anglo-American legislatures, law is always a compromise. As laws travel out of legislatures and into courts, the agonism at laws’ origin is forgotten, and laws are seen as acontextual. Thus, I suggest, cultural difference has the potential to lead to systemic transformation more easily at legislative levels than it can in courts.
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    6 years ago
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