Delimiting the Culture Defense

Abstract

This essay builds upon the arguments of Alison Dundes Renteln in her influential book, THE CULTURAL DEFENSE, 2004, in which she argues persuasively for a uniformly recognized culture defense in certain litigations. Critiquing some of her details, we recast her three-prong culture defense test to more effectively balance the competing interests of minority culture members to have their ways of life taken seriously by the courts, and of members of the dominant tradition who wish to preserve the rule of law with its necessary perception as treating all parties equally. The offered formulation now includes the following five elements:

1. Is the litigant an enculturated member of the referenced group?

2. Does the group have an acknowledged tradition as that claimed by the litigant?

3. Is that tradition expected to contribute to the fostering of positive social bonds within the culture group?

4. Was the litigant influenced by that tradition when he or she acted?

5. Were the circumstances of the litigant such that he or she could be reasonably presumed to be unaware of the contrary normative standards of the dominant society?

Keywords: Culture defense, Rational man, Mens rea

JEL Classification: K13, K14, K40