Intersections of law and culture – a sample and an abstract of the book by Priska Gisler, Sara Steinert

Borella and Caroline Wiedmer

Setting the Stage: Reading Law and Culture Priska Gisler, Sara Steinert Borella and Caroline Wiedmer
Introduction In November 2009, an initiative calling for a ban on minarets in Switzerland was put to the
popular vote and passed by a small but clear margin: ultimately, the vote resulted in a moratorium from
that time forth on the construction of minarets on Swiss ground. During the months both before and
after the vote, debates about the significance of this initiative dominated discussion in Switzerland and
quickly spread to much of the Western and Islamic worlds. Questions about the ban far outnumbered
any ready answers. Did the ban constitute a threat to religious freedom? If so, what did it mean for
Switzerland to curtail the religious practices of a well-integrated minority? Was the ban an infringement
on international law, which forms an inalienable part of the constitution, and hence invalid? How would
the Muslim population within and outside of Switzerland react? The posters that appeared on roadside
billboards, with their images of minarets rising like rockets out of the Swiss flag next to a black-clad
figure in a niqab, proved especially provocative and understandably troublesome to many. Were the
posters racist? Sexist? Feminist? Swiss federal councillors appeared flustered in press conferences that
were called to assure the world that the Muslim population in Switzerland was well-liked and well-
integrated, and meetings in Brussels with European officials were urgently convened to determine the
legality of the initiative. At the same time, populist parties in Austria and Germany ambitiously declared
that they, too, wanted to ban minarets in their countries. It quickly became clear that the new law, and
all of the emotion that went into the discussions, had little to do with the actual construction of the
minarets. Few of the Swiss who went to vote on the initiative had, in fact, ever thought about, much less
encountered, one of the four minarets that had already been built in Switzerland. Rather, the initiative
and the resulting law came down, in their most basic interpretation, to an attempt to reiterate a political
right-wing ideology. Simply put, the initiative 2

Intersections of Law and Culture sought to erect a symbolic boundary that emphasized once more the
differences between ‘our’ culture and ‘their’ culture. As Ulrich Schlüer, one of the proponents of the
minaret initiative, was quoted as saying in The Guardian, minarets represented ‘a symbol of political
power, a prelude to the introduction of sharia law’ (Traynor, 2009). Accordingly, the varied reactions to
the ban either celebrated this newly drawn boundary or attempted to erase it and return to the status
quo that prevailed prior to the new law. Either way, it became clear that the essential spectacle did not
concern the construction of minarets, but rather the creation of a new law with the power to reshuffle
cultural meaning and to redirect the ways we think about differences. The minarets merely served as a
point at which law and culture intersected, and this intersection provoked a potent reconfiguration of
the political landscape. The notion of intersection proves to be quite an elastic concept. It can mean
anything from the deliberate marshalling of a minor issue to attain a political end, as we have just seen
with the minaret initiative, to the urgent convergence of social and political needs with moments of
historical readiness in cases such as Roe v Wade or Brown v the Board of Education. The societal
reactions to such intersections can range from the equivalent of a polite nod between acquaintances to
a metaphorical collision that can derail entire social systems. Intersections are, therefore, far from trivial
phenomena. Consider, for example, diverse political and social themes that intersect: architecture and
religion in the case of the minarets; human experimentation and freedom of research; or homosexuality
and parenthood in the case of laws on gay parenting. Our understandings of these issues and, in some
cases, the meaning and importance of these issues are forever transformed. Intersections of competing
cultural and legal norms may thus inform new discourses, both popular and academic, and create
transformed social realities. The relationship between law and culture The aim of this volume is to
highlight a number of such points of intersection in the form of case studies and to explore how law and
culture react and interact in their wake. Depending on how the relations of law and culture are
conceptualized, the precise geometry of these intersections can be thought of in various ways: as
meeting points; as partially overlapping planes; or as intersecting straight lines with potentially dramatic
reiterations of boundaries and the constitution of new realms. In addition to distinct notions of what
constitutes intersections, the articles in this volume operate with different definitions of what
constitutes culture or how law functions in society.

Setting the Stage: Reading Law and Culture While we readily speak of law and culture and claim to
understand the implications, we acknowledge in this volume that various disciplines read and interpret
law and culture from a multitude of perspectives. Culture, for instance, can be defined narrowly as
simply an artefact – such as a painting, a music score, a Barbie doll, or a beautifully manicured garden –
the product of human activity rather than the activity itself. Law often interprets culture in just this way:
a book, for instance, can be treated as an object that is legally contested and might be censored or
banned by a legal decision. A broader definition, in contrast, might hold culture to be an all-
encompassing field, one composed of all social practices, including the operation of law.

Within British cultural studies, Raymond Williams was an early proponent of widening the concept of
culture in an attempt to wrest the notion away from an elitist upper class which associated it primarily
with the objects and tastes of a high form, such as canonized literature, music and art. ‘Yet a culture is
not only a body of intellectual and imaginative work,’ Williams writes in an article aptly entitled ‘Culture
is Ordinary’, ‘it is always and essentially a whole way of life’ (Williams, 1958). Anthropologists have also
long operated with an all-encompassing notion of culture. Plog and Bates, for instance, write that
culture is a ‘system of shared beliefs, values, customs, behaviors, and artifacts that the members of
society use to cope with their world and with one another, and that are transmitted from generation to
generation through learning’ (Plog and Bates, 1988, p. 7). Thus, a learned system of culture inevitably
depends on one’s position in the world. In Minding the Law, Anthony Amsterdam and Jerome Bruner
describe the entanglements and complexities of culture and its relationship to law. ‘Cultures’, they
write: are marked by contests for control over perceptions of reality. In any culture, there are both
canonical versions of how things really are and should be and countervailing visions about what is
alternatively possible. What is alternatively possible comprises both what is desirable and beguiling and
what seems disastrous and horrifying. The statutes and conventions and authorities and orthodoxies of
a culture are always in a dialectical relationship with contrarian myths, dissenting fictions and, most
importantly of all, the restless powers of the human imagination (Amsterdam and Bruner, 2001, pp.
231–2, emphasis added). Culture in this volume is conceptualized very much according to these ideas, as
an exquisitely complex organism, forever moving in several directions at once and constantly seeking a
balance between the possible and the desirable. Where does that leave law? Within these expansive
definitions of culture, law remains a crucial component because it functions as a tool that can be used
at once to maintain and frame the way things are while making forays into the way things might be.
Indeed, often seen as the system in charge of taming the unruly within a given culture, law maintains
and shapes a cohesive whole with pervasive regulations and negotiations that impart values,
hierarchies, symbols and ideologies. In Foucauldian terms, law is both a discourse and the complex set
of rules, mechanisms and guidelines that direct the ways in which we behave and act. The discourse and
the system the discourse engenders inform hierarchies of power, as is the case with our story of
Switzerland and its minarets: the new law, absurd as it might seem, belongs to a larger structure of
regulations that characterize a specific logic having to do with immigrants; a system, to put it
provocatively, that is characterized by a fear of the ‘Other’. This fear might be said to be reflected in its
overall legislation as a symptom of sorts that pervades regulations having to do with those deemed
foreigners, even as particular pieces of legislation actively shape the intransigence of the Swiss border.
The minaret proper then becomes a symbol of this fear. Law, in this view, becomes a part of culture,
inextricably entangled with social practices and involving meaning-making processes that deeply affect
the way we conduct our everyday lives. As Goldberg, Musheno and Bower write, ‘[t]here is no abstract
law, a language of law transcending culture, purged of all spatiotemporal specificity ... there is no law,
then, that is not at once political in its assumptions and implications’ (Goldberg et al., 2001, p. xiv). Of
course, law can also be broken down into its component parts. These include discreet pieces of
legislation inscribed in a constitution, or in a civil or penal code; a series of organizations and institutions
such as courts, parliaments, lawyers’ offices, and police stations; and finally, a range of actors who
interpret rules and guidelines, such as judges, juries, lawyers, members of the police and the public. The
contributions assembled here focus variously on these discreet parts, examining how the different
configurations of the law intersect with culture in its many aspects. Thus, some of the contributions in
this volume concentrate on culture as a Gesamtkunstwerk, while others look at particular practices, and
still others concentrate on a particular artefact. The same applies to the treatments of the law. While
some contributions focus on individual laws and tell the story of their coming into being, others report
the manifold ways in which political decisions come to fruition and unfold their agency. What all of the
articles have in common, regardless of their particular take on culture and the law, is that they consider
law and culture as intrinsically fluid processes of negotiation. They then seek to answer questions about
how the overarching culture, or the diverse legal practices, and the wide range of culturally coined
objects intersect; how they might be configured by law and culture; and, subsequently, how law and
culture mutually constitute each other.

Setting the Stage:

Reading Law and Culture 5 One of the recurring themes throughout the volume, moreover, is that of
borders and boundaries: erecting them, shifting them, overstepping them and occasionally tearing them
down completely. That law fundamentally operates according to the logic of boundaries has long been
recognized: ‘In its basic operation’, write the editors of a volume on socio-legal culture, ‘law attempts to
create, police, and occasionally transgress social, spatial and temporal boundaries ... Within law’s spatio-
temporal grid, complex systems of classifications are established, creating boundaries that define
individuals, communities, acts and norms.’ (Sarat et al., 1998, pp. 3–4) Thus, if we think of our minarets
as a place where law and culture meet, we become aware of processes of exclusion and inclusion, a tug-
of-war over belonging, identity and legitimacy.

Conversations Read singly, the contributions in this volume each engage the relation of law and culture
from within distinct cultural and disciplinary perspectives, often using novel and unorthodox
methodological approaches. Read together, the juxtaposition of disparate topics and ideas develop a
synergy of their own across what we have come to think of as behind-the-scenes conversations. The first
of these conversations is about what happens to disciplinary and methodological thinking under the
aegis of a topic as broad and frankly post-disciplinary as law and culture. While nominally belonging to
disciplines such as literature, sociology and history; or cultural, legal and gender studies, each author
here delves into areas of scholarship that include law and literature, law and culture and socio-legal
studies. The effect is not so much a redrawing of disciplinary boundaries, of a juxtaposition of ideas from
others realms of scholarship, as it is the complete erasure of lines between disciplines. The results are
insights not only about the relation of law to culture, but indeed about the process of knowledge-
making itself. A second conversation that takes place behind the scenes has to do with the two legal
traditions, civil law and common law, which act as a basis for the respective pieces. The civil law
tradition, to which European legal systems belong, differs substantially from the common law tradition,
which governs, among many others, the legal systems in the United States and Great Britain. These
traditions, we suggest, constitute a kind of baseline for the authors’ perceptions of law’s relation to
culture. This second conversation is more akin to an indistinct whispering in the background, because
the functioning of the legal tradition in one’s particular environment is in general assumed to be a norm
by the individual authors and therefore is only faintly reflected in the contributions. Why then is this
differentiation amolegal traditions important? On the one hand, each has distinct procedures as well as
distinct 6 Intersections of Law and Culture forms of negotiation and dispute resolution that determine
the access individuals have to the law and the roles they get to play in its processes. The jury system, for
instance, is largely non-existent in the civil law tradition; hence, the audience a lawyer faces is entirely
different in European countries from the one that lawyers play to in the Anglo-Saxon system. Thus,
when Richard Sherwin calls for a visual jurisprudence in his contribution and bases his call on the visual
literacy of his jury, his argument signifies something distinctly different for a civil law court and those
involved in it. Depending on the legal tradition in which we write, the arguments we make will be
affected accordingly. These differences in legal traditions have implications for more than just
scholarship. As John Merryman and Rogelio PerezPerdomo write, a legal tradition is a set of deeply
rooted, historically conditioned attitudes about the nature of law, about the role of law in the society
and the polity, about the proper organization and operation of a legal system, and about the way law is
or should be made, applied, studied, perfected and taught. The legal tradition relates the legal system to
the culture of which it is a partial expression. It puts the legal system into cultural perspective.
(Merryman and Perez-Perdomo, 2007, p. 2) The example of the Swiss minarets only serves to reinforce
these observations historically conditioned attitudes to outsiders ultimately shape the latest
modifications to the Swiss constitution, highlighting how the legal tradition may then express cultural
fears and bias. Different cultures will thus engender varied perspectives on legal systems and on how
these systems are conceptualized and enacted. An approach that highlights these competing traditions
can provide not only new grounds for interpretation, but can help remind us that our own positions are
inevitably culturally determined. We would like to suggest that the breadth of this volume comes
specifically from the diversity of voices represented, from the UK, the US, France, the Netherlands and
Switzerland. This provides the reader with the opportunity to read across legal traditions in a
comparative fashion. The European legal culture comparison (Van Hoecke and Warrington, 1998, p. 504)
provides enough points in common to make such an endeavour useful while the multinational platform
creates enough dissonance to offer up new insights into the intersections of different legal traditions.