IDS 4933 Honors Law and Anthropology
Professors Rachel Corr and Mark Tunick
 Fall 2004
Revised due to Hurricane Frances (Original syllabus is online)
http://wise.fau.edu/~tunick/courses/ids/law_anthropology/index.html

Description: This course focuses on how legal systems do and should cope with people of different cultures. For example, should we allow a cultural defense to people who violate U.S. law while engaging in practices that are a legitimate and accepted part of their native culture, on the ground that complying with the law for them is more difficult? What are the costs of accommodating people of different cultures, and what are the costs if instead we force them to assimilate? Are people accountable for the way in which they are brought up? Are there fundamental differences in the nature of social control and what counts as 'law' among various societies? Are there universal standards of justice that should be common to any legal system, or should we rather say that concepts such as justice, due process, and law are socially constructed and vary among different societies, with no particular conception having any more intrinsic value than another?  The class will be discussion based, and students must come to class prepared to discuss the day's readings. This course counts toward the Honors College critical inquiry seminar requirement. Class now meets in HC 116.

Requirements: Attendance and participation in class discussion is required. Grades will be based on 4 papers, each ~ 4-6 pages in length (20% each), and on in-class essays/quizzes and participation in class discussion (20%). Excessive absences will result in a reduced grade for the course. A few additional sessions will be scheduled for screening of films.

Readings: The following books have been ordered for the course: The End of Tolerance: Engaging Cultural Difference (Daedalus, Fall 2000)(hereafter Daedalus--also available online); Geri-Ann Galanti, Caring for Patients from Different Cultures; John Hawley, Sati: The Blessing and the Curse; Clifford Williams, Free Will and Determinism: A Dialogue; and Elizabeth Warnock Fernea, Guests of the Sheik.  Additional materials are available either in a xeroxed course packet or online. Some online materials require you to use a computer within the FAU domain or, if you use a computer not on campus, to use a proxy. All court cases are available online at lexis-nexis but for U.S. Supreme Court cases past 1893, a better-formatted online version is available at findlaw.

Office Hours: Corr: MW 9-12; Tunick: T 11-2; W 11-12:30; Th 12:30-2. Email: rcorr@fau.edu ; tunick@fau.edu

Honor Code: Students agree to adhere to the honor code, available online at http://www.fau.edu/divdept/honcol/students/honorcode.html

Topics

I. Introduction: culture clash in the liberal state

8/24. Introduction: the problem of culture clash; legal studies in anthropology
Reading: Howard French, "A Cultural Clash Forces Korea to Beware of Dog," New York Times, Dec. 13, 2001 (handout), online
For those interested: Patrik Jonsson, "Immigrants' backyard butchery of goats riles neighbors," Christian Science Monitor, Sept. 5, 2002, online; Korean animal protection society website; NYT article of Aug 4, 2004 on applying Islamic law in Canada, online. 

8/26. What is culture and who belongs?
Rdg: Galanti, ch. 1

For those interested: Simon Roberts, "Do we need an anthropology of law?" RAIN v. 25 (1978), 4 pages (jstor); Suarez-Orozco, "Everything You Ever Wanted to Know About Assimilation But Were Afraid to Ask" (in Daedalus)

8/31. Liberalism and the preservation of minority cultures
Rdg:  Jeremy Waldron: "Minority cultures and the cosmopolitan alternative,"  University of Michigan Journal of Law Reform 25:751-93 (1992) (online at lexis-nexis: click legal research/law reviews/do guided search using author/title, set date to 'all available')

9/2-9/10 Hurricane Frances

9/14. In class video: 'Slavery's Buried Past'

9/16. Should cultural autonomy be respected?
Rdg: Mississippi Choctaw Indian Band v. Holyfield, 490 U.S. 30 (1989), online at findlaw ; "California Judge Says Courts May Decide Tribal Disputes," New York Times, July 25, 2004 (online; or search news at lexis-nexis); Lynn Meisch,  "We Will Not Dance on Our Grandparents Tombs: 500 Years of Indigenous Resistance" (handout)

9/21. Individuality vs cultural groups
Rdg: George Kateb, "Notes on Pluralism," Social Research v. 61, n. 3 (Fall 1994), online (or search within FAU's online journal collection).
For those interested: Will Kymlicka, Multicultural Citizenship; David Bromwich, "Culturalism, the euthanasia of liberalism," Dissent 42:89-102 (Winter 1995), online

Film: Where the Green Ants Dream Tuesday, Sept. 21, 7pm in HC 116

9/23 Case study: law and the aborigines of Australia
Rdg: Gibbons, ed. Language and the law (xerox)

II. Relativism vs Universalism
9/28.   The problem of false consciousness
Film: Star Trek: Next Generation, 'Half a Life'
Rdg: Marvin Harris, Cows, Pigs, Wars and Witches pp. 11-45 (handout)
Paper one due

9/30.  Anthropological and philosophical perspectives
Rdg: 'Shakespeare in the Bush' (xerox); Fred Korn and Shulamit R. Decktor Korn, "Where People Don't Promise," Ethics 93:445-50 (1983)  (available online at jstor: search philosophy  journals); Ruth Benedict and Walter Stace: Debate on Moral Relativism (xerox); Martha Minow, "About Women, About Culture: About Them, About Us" (Daedalus, Fall 2000); also available online: search for 'Daedalus' and use infotrac option); Stanley Fish, "Condemnation Without Absolutes," New York Times, Oct. 15, 2001, online (or search lexis-nexis)
For those interested: John Cook, Morality and Cultural Difference (Oxford UP), chapters 1-7, 9 (82-87), 10-11, 13-14, 20 (165-168); John Finnis, Natural Law and Natural Rights; Gilbert Harman, "Moral Relativism Defended," Philosophical Review 84:3-22 (1975) (jstor); Samuel Fleischacker, The Ethics of Culture

10/5 Case study: sati
Rdg: R. Hartley Kennedy, “The Suttee: The narrative of an eye-witness,” Bentley’s Miscellany, 13:241-256 (1843)–online (in 'Electronic Journals' search for Bentley's Miscellany; the article should be item 78 in volume 13); Hawley,  Sati: The Blessing and the Curse, Introduction (pp. 3-26)

10/7. Sati (continued)
Rdg: Hawley,  ch. 1 (pp. 27-53), chs. 3-5, afterword, (pp. 79-186)

III. The problem of culture clash: Should there be a cultural defense?  The criminal law excuses people who were unable to comply with the law, for example those who are insane, or too young to be accountable for their actions. Are people from other cultures sometimes unable to comply with the requirements of U.S. law? Should they be granted a cultural defense?

A. The problem of free will

10/12. Rdg: C. Williams, Free Will and Determinism: A Dialogue

10/14. Rdg: Michele M. Moody-Adams, “Culture, Responsibility, and Affected Ignorance,” Ethics 104:291-309 (Jan 1994) (available online at jstor); Sanford Kadish,  "Excusing Crime," in his Blame and Punishment (1987)(xerox);  Lambert v. California, 355 U.S. 225 (1957) (is ignorance of the law an excuse?)

For those interested: Robert Owen, A New View of Society, online; Sean Spence, "Free will in the light of neuropsychiatry," Philosophy, Psychiatry, & Psychology 3.2 (1996) 75-90, online; Roger Brown and Eric Lenneberg, “A Study in Language and Cognition,” Journal of Abnormal Psychology 49:454-62 (1954); Richard Nisbett, The Geography of Thought: How Asians and Westerners Think Differently...and Why; Mark Tunick, review of Nisbett, online. 

B. Case studies
(1) Cultural defense

10/19. The case of Ms. Kimura

Rdg: Janet Rae-Dupree and Jack Jones, "Children in Arms, Mother's Trek into Sea Stuns her Neighbors," Los Angeles Times, Jan. 31, 1985; Maura Dolan, "Two Culture's Collide Over Act of Despair," L.A. Times, Feb. 24, 1985; Robert Stewart, "Accused Mother Preoccupied by Death," L.A. Times, March 29, 1985; Robert W. Stewart, "Probation Given to Mother," L.A. Times, Nov. 22, 1985; T.W.McGarry, "Postscript: Kimura was Dragged Ashore in Time," L.A. Times, June 14, 1988: all online at lexis-nexis: search news/general news, or search LA Times in FAU journal database; Spencer Sherman, "Legal Clash of Cultures," National Law Journal, August 5, 1985: at lexis-nexis: search legal research/legal news

For those interested: James Brooke, "Okinawa Suicides and Japan's Army: Burying the Truth," New York Times, June 20, 2006,at lexis-nexis: search news/general news; Cheek v. U.S. (498 US 192, 1991)(complicated case that establishes that you are criminally liable if you break a law that requires 'willful violation' where you know what the law requires but merely disagree that the law is valid); Edward Arnolds and Norman Garland, “The Defense of Necessity in Criminal Law,” Journal of Criminal Law and Criminology, vol. 65, no. 3 (1974); Kent Greenawalt, “The Perplexing Borders of Justification and Excuse,” Columbia Law Review, vol. 84 (December 1984) at lexis-nexis; Richard Delgado, "Rotten Social Background": Should the Criminal Law Recognize a Defense of  Severe Environmental Deprivation? 3 L. & Ineq. J. 9 (1985) (reprinted in J. Murphy, ed. Punishment and Rehabilitation, 1995)

10/21. The cases of Dong Lu Chen, Helen Wu, and Mr. Kargar

Rdg: Shaun Asseal, "Wife Killer May Get Probation," Manhattan Lawyer, March 14-20, 1989; and "Judge Defends Sentencing Wife Killer to Probation," Manhattan Laywer, April 4-10, 1989: at lexis-nexis: search legal research/legal news; and Marianne Yen, "Refusal to Jail Immigrant who Killed Wife Stirs Outrage," Washington Post, April 10, 1989: at lexis-nexis:search news/general news; People v. Helen Wu: 235 Cal App. 3d 614 (1991); Maine v. Kargar: 679 A 2d 81 (1996): at lexis-nexis: search legal research/get a case

For those interested: Wanderer and Connors, "Culture and Crime: Kargar and the Existing Framework for a Cultural Defense," 47 Buffalo L. Rev. 829 (Spring 1999), at lexis-nexis

(2)  Health care

10/26. Rdg: Galanti, Caring for Patients from Different Cultures
Paper two due

(3) Female Genital Mutilation

10/28. Rdg: Shweder, "What About 'Female Genital Mutilation"?' (Daedalus); Doriane Coleman, "The Seattle Compromise: Multicultural Sensitivity and Americanization," 47 Duke L. J. 717 (February 1998) (lexis-nexis: search legal research/law reviews); and Marc Lacey, "In Kenyan Family, Ritual for Girls Still Divides," New York Times, January 6, 2002 (lexis-nexis: search news/general news)

11/2. Rdg: Menon, "Does Feminism Have Universal Relevance? The challenges Posed by Oriya Hindu Family Practices" (Daedalus); Fuambai Ahmadu, 'Rites and Wrongs: An Insider/Outsider Reflects on Power and Excision', and Lynn Thomas, "'Ngaitana (I will Circumcise Myself)': Lessons from Colonial Campaigns to Ban Excision in Meru, Kenya," in Female 'Circumcision' in Africa (xerox); Tepilit Ole Saitoti, 'The Initiation of a Maasai Warrior' (xerox)
For those interested: James Dao, "Senate Panel Approves Treaty Banning Bias Against Women," New York Times, July 31, 2002 (lexis-nexis)

(4) Marriage arrangements

11/4. The Hmong 'marriage by capture'
Rdg: Choua Ly, Comment: The Conflict Between Law and Culture: The Case of the Hmong in America," 2001 Wis. L. Rev. 471 (2001) (lexis-nexis: search legal research, law reviews. Used 'Guided Search' to type in author and title of article)(NOTE: for this article select print preview before printing, and if the footnotes appear double-spaced, just print the pages of the main text and omit the footnotes)

11/9. Rdg:  Chambers, "Civilizing the Natives: Marriage in Post-Apartheid South Africa" (Daedalus); Wikan, "Citizenship on Trial: Nadia's Case" (Daedalus); Michael Janofsky, "Conviction of  a polygamist Raises Fears Among others," New York Times, May 24, 2001 (lexis-nexis); Reynolds v. US (98 US 145, 1878); Potter v. Murray City (760 F 2d 1065, 1985); selections from Weston, Families We Choose (xerox)
For those interested: comment on Michael Warner's The Trouble with Normal: Sex, Politics, and the Ethics of Queer Life, online

(5) The Veil: Islam and human rights

11/11 No Class: Veteran's Day

11/16. Rdg: Elizabeth Warnock Fernea, Guests of the Sheik; Lila Abu-Lughod, “Do Muslim Women Really Need Saving?”, American Anthropologist 104 (3): 783-790 (2002), online (search American Anthropologist)
Videos: Veil of Revolution; God Fights Back
For those interested:  Dana Canedy, "Lifting Veil for Photo ID Goes Too Far, Driver Says," New York Times, June 27, 2002 (lexis-nexis); Marlise Simons, "Behind the Veil: A Muslim Woman Speaks Out," New York Times, Nov. 9, 2002; Carlotta Gall, "Long in Dark, Afghan Women Say to Read is Finally to See," New York Times, Sept. 22, 2002; "Courts Uphold Stoning for Nigerian Mother," New York Times, August 20, 2002 (A.P.)--all available at lexis-nexis; Samuel Huntington, "The Clash of Civilizations," Foreign Affairs, Summer 1993 (online); Amartya Sen, "A World Not Neatly Divided," New York Times, Nov. 23, 2001; Ann Mayer, 'Universal vs Islamic Human Rights: A Clash of Cultures or a clash with a construct', 15 Mich. J. Int'l L. 307 (1994) (lexis-nexis)

(6) Religious Freedom and the 1st Amendment

11/18. Rdg: Ewing, "Legislating Religious Freedom: Muslim challenges in Germany and France" (in Daedalus); Pierce v. Society of the Sisters of the Holy Names of Jesus (268 US 510, 1925); Wisconsin v. Yoder (406 US 205, 1972)
Paper three due

11/23. Rdg: U.S. v. Lee (455 US 252, 1982); Sherbert v. Verner (374 US 398, 1963);  People v. Singh (516 N.Y.S. 2d 412, 1987); U.S. v. Seeger (380 U.S. 163, 1965); State of Minnesota vs. Tenerelli, 598 N.W.2d 668 (1999); Bowen v. Roy (476 US 693, 1986);  Lyng v Northwest Indian Cemetery Prot. Assn (485 US 439, 1988)

11/25. No Class: Thanksgiving Day

11/30. Rdg: Cantwell v. Connecticut (310 US 296, 1940); Thomas v. Review Bd., Ind. Empl. Sec. Div. (450 US 707, 1981)
Video: Bill of Rights in Action

IV. A comparative perspective

12/2 Rdg: Martin Shapiro, Courts: A Comparative and Political Analysis, ch. 4
Film: Faces of Culture
Film: The Story of Qiu Lu
Paper four due

For those interested: Malinowski, Crime and Custom; Merryman, The Civil Law Tradition; Ellsworth Faris, The Origin of Punishment, International Journal of Ethics, Vol. 25, No. 1. (Oct., 1914), pp. 54-67 (jstor); Max Weber, "Bureaucracy and Law," in Gerth and Mills, ed. From Max Weber: Essays in Sociology (1946), pp. 216-21; Douglas MacDowell, Athenian Homicide Law; Evgeny Pashukanis, Law and Marxism; A. P. Lyons, "Harina, or Punishment by Substitute-a Custom Amongst the Kiwai and Kindred Peoples of Western Papua," Man, Vol. 21 (Feb., 1921), pp. 24-27 (jstor); Karl Llewellyn and E. Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (University of Oklahoma, 1941)

Updated June 20, 2005