Audrey Macklin's Legal Methods In Her Article “Looking At Law Through The Lens Of Culture: A Provocative Case”

In her journal, “Looking at Law through the Lens of Culture: A provocative Case”, Audrey Macklin establishes two different legal methods. She calls the first method “looking at culture through the lens of law.” (Macklin, 2002) Macklin discusses how there are concerns about the North American criminal law’s use of “cultural defences.” (Macklin, 2002) This method of looking at culture through the lens of law establishes the notion that using cultural defences assumes that certain immigrants and racialized minorities are the only ones that have a culture. (Macklin, 2002) This method understands culture as something only certain groups and minorities have, and it understands that mainstream, western society is seen to not have a culture.

Culture, in this method, is seen as being used by mainstream society as a way to assert power over certain immigrant and racialized groups, and to begin to exclude them from society. This method also recognizes law as an instrument created by and for the white, Anglo-European society, and is seen as being consistently in favor of mainstream societies culture. This method understands the relationship between culture and law to be very problematic. Cultural defences are usually claimed by males that are accused of committing crimes of violence, such as sexual assault and homicide, against women and/or children. (Macklin, 2002)

One of the main problems that this method understands about the relationship between law and culture is that using these defences often times negates the protection the law should supply to women and children of those communities and cultures. (Macklin, 2002) This method also recognizes that the relationship between culture and law is used by white, Anglo-European societies in order to exercise more power over immigrant and racialized minorities. Mainstream society views itself as being modern and progressive, while other cultures are viewed as being traditional, oppressive and fundamentally flawed. When culture and law are used together, it becomes another way for mainstream society to deny immigrant and racialized groups power and protection.

The second method that Macklin identifies in her journal is “looking at law through the lens of culture.” Macklin discusses the use of the provocation defence when dealing with homicide, which reduces the charge to manslaughter. (Macklin, 2002) This method identifies the notion that the application of certain legal doctrines represents certain culturally specific assumptions and norms. (Macklin, 2002) The defence of provocation is not viewed as a cultural defence, because when it is used by an accused, legal doctrine does not see them as having killed the victim because they were acting in accordance with the dominant culture. This method see’s the law as being favorable towards people who act in accordance with the dominant culture. However, this method also recognizes that the law and the people administrating the law, do not acknowledge that the law is biased towards those people who act in accordance to the dominant culture. Culture in this method is viewed as a notion that is very prominent in the legal system, but is also denied because Anglo-European law refuses to accept a higher source of authority other than itself. (Macklin, 2002)

Anglo-European law denies the fact that the defence of provocation is a cultural defence, and instead believes it is about human nature, and losing control. (Macklin, 2002) When using a provocation defence, the judgement should originate from the notion that the level of self-control expected from the accused should not vary depending on their culture. (Macklin, 2002) The defence of provocation is also often used by men in cases where they kill their partner for committing adultery, or homosexual men who make unwanted advances on them. (Macklin, 2002).

The relationship between law and culture on this method shows how the defence of provocation, like cultural defences, often times sanctions violence against more vulnerable people such as women, children and homosexual men. (Macklin, 2002) The relationship between law and culture in this method demonstrates how even when using a defence that is not seen as being a cultural one, women, children and other vulnerable people are often put in harm’s way, and their safety and security is often dismissed.

In her article, Macklin uses both of these methods to show how culture and law are not separate from one another. Looking at culture through the lens of law demonstrates how cultural defences are a way to oppress immigrant, minority and racialized groups because of cultural practices and norms that differ from the mainstream culture. Looking at law through the lens of culture demonstrates how some cultural practices and norms are accepted and legitimized by the law when they are in conformity with the dominant, mainstream culture. There are some links between Macklin’s journal, and Carol Aylward’s journal on anti- racist approaches to criminology. Aylward discusses the Critical Race Theory and states how legal discourse disregards the fact that law is product and promoter of racism. (Aylward, 1999)

Aylward also mentions how certain groups of people refuse to recognize the relationship between law and racism. (Aylward, 1999) Critical Race Theorists acknowledge the notion that race-based subordination has and continues to be legitimized by the law. (Aylward, 1999) The links between Macklin and Aylward are that both these scholars and their theories see the relationship between law and culture, and law and race to be complex. Macklin and Aylward both recognize that law is used as an instrument to assert power and dominance over immigrant and racialized groups. Their methods also recognize the fact that white Anglo-European culture and race seem to disappear and be non-existent, and immigrant, minority and racialized groups are the only people who are seemed to have a culture and race. The relationship between law and culture, as well as law and race is one that has many flaws, and is continued to be used as a way to keep oppressing immigrant, minority and racialized groups.

01 April 2020
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