The irony of these times ... is that as actual places and localities become ever more blurred and indeterminate, ideas of culturally and ethnically distinct places become perhaps even more salient. --Akhil Gupta and James Ferguson (1) Black Seminole Indians are fighting with "blood" Seminoles over who is a true Seminole. (2) Gays contest what it means to be a "Boy Scout." (3) Orthodox Jews challenge the authenticity of Reformed Judaism. (4) Black and gay Republicans vow to reform the Republican Party. (5) Within black America, conservatives vie with liberals. (6) Pueblo Indians denounce tribal leaders' rules as sexist. (7) Catholics dissent from Church doctrine over contraception (8) and search the Internet for "alternative" Catholic priests to perform their marriage ceremonies. (9)
The ground beneath our feet is shifting. (10) In the twenty-first century, internal cultural fissures abound. (11) Modern society is becoming increasingly homogeneous across cultures and heterogeneous within them. (12) Globalization, liberalization, the Internet, and Diaspora--to name only a few of the forces of modernization--are collapsing cultural barriers and facilitating unprecedented culture flows of people, information, and ideas across traditional cultural boundaries. (13) Increased confrontation with modernity and exposure to alternate ways of life are spurring people within cultures to challenge cultural orthodoxies and demand more equality and autonomy within their cultural contexts. The result is that today, any given cultural group might be marked by very diverse ways of living within a culture. As anthropologist Arjun Appadurai describes the new world in which we live, the days when groups were "tightly territorialized, spatially bounded, historically unselfconscious, [and] culturally homogeneous" are gone. Today, "[w]e have fewer cultures in the world and more internal cultural debates." (14)
Stated another way, cultures now more than ever are characterized by cultural dissent: challenges by individuals within a community to modernize, or broaden, the traditional terms of cultural membership. Today, more and more individuals are claiming a right to dissent from traditional cultural norms and to make new cultural meanings--that is, to reinterpret cultural norms in ways more favorable to them. Not satisfied to choose between tradition and modernity, people in the modern world want both. They want culture, but on their own terms. (15) Take a few examples. Gay Irish-Americans want to march in a St. Patrick's Day parade under a banner proclaiming themselves Irish and gay. (16) Muslim feminists reinterpret the Koran and emphasize women's right to religion and equality. (17) Indian lesbians reject charges that homosexuality is "Western" and assert their sexuality in an Indian context. (18) Significantly, these new claims to cultural dissent challenge the very notion of culture itself. As individuals assert a right to autonomy, choice, reason, and plurality within culture, claims to cultural dissent render archaic traditional conceptions of culture as imposed, determined, bounded, and homogeneous. Cultural dissent heralds a new age of freedom and equality within cultural communities. It symbolizes a movement from status to contract in the way cultural communities are conceived and engaged. (19)
But thus far law has been fearful of the cracks, tears, and raptures in modern cultures. In the face of seismic cultural changes, law remains steadfastly committed to the old-world view of cultural diversity as existing across cultures, but not within them. The "right to associate," the "right to culture," (20) the "right to religion," and other laws are interpreted to defend cultural groups against the forces of modernization and change. Internal cultural ferment is suppressed as law authorizes the exclusion of dissenters who threaten to dilute a culture's distinctiveness. But as engineers and architects of earthquake-proof buildings know, the more solid and entrenched an edifice is, the more likely it is to crumble. The buildings that survive are those that are designed to move, bend, or sway a little--they go with the flow.
This Article critiques law's current approach to cultural conflicts--which I characterize as a "cultural survival" approach--and argues in favor of a new paradigm which I call "cultural dissent." "Cultural survival" measures often end up impeding internal reform efforts to contest discriminatory or repressive cultural norms. The cultural survival approach reinforces old notions of imposed identity over new normative visions of identity as choice. A "cultural dissent" approach, in contrast, recognizes that cultures are changing, in some ways for the better. By acknowledging plurality within culture, this approach facilitates a normative vision of identity in which individuals can choose among many ways of living within a culture.
Which view of culture will prevail increasingly depends on law. In the modern day, insularity does not come naturally. (21) Those who seek it must fight for it. (22) One response to crumbling cultural fences and the rise of internal cultural debates, not surprisingly, has been to turn to law to protect against the dilution of cultural traditions and to preserve stable cultural categories. (23) In paradoxical fashion, just as claims to distinct cultural identities are becoming weaker in the modern world, calls for law to protect or preserve cultural associations and insulate cultural groups from change are becoming stronger and more common. (24)
These two developments--the decline of actual cultural distinctiveness and the rise of ascriptive cultural distinctiveness--go together. The high value that individuals ascribe to their cultural identities (regardless of how indistinct those identities may be becoming) (25) and a greater recognition of law as a means of protecting against cultural change are leading cultural groups to use the coercive powers of the state to reconstruct pure identity categories. (26) We are witnessing what Charles Taylor describes as the "politics of recognition" (27)--claims by groups for legal rights to have their cultural distinctiveness recognized and preserved. Today groups afraid of cultural dilution or demise seek to counter with legal rights that ensure "cultural survival" (28) --the desire "to maintain and cherish distinctness, not just now but forever." (29) Legal claims for cultural survival include exclusive rights to define language and norms, to transfer language and norms to future generations, and "to exclude others in order to preserve ... cultural integrity." (30)
But legal rights to police a culture's normative borders--granted in the name of protecting a culture against homogenization--could do more than offer a means for cultural communities to regain a degree of control over their community and expressions. Legally enforced cultural boundaries could, conceivably, accord powerful members of cultural groups the ability to suppress any rumblings for change in a culture, particularly by censoring or excluding those members who challenge power relationships within a culture and threaten the status quo. While cultural dissenters have always held a precarious position within cultural groups--as Janet Halley observes, culture, by its very nature, "constrains" (31)--historically, cultural dissent has been theoretically possible. Cultural changes are spurred by individuals resisting or critiquing repressive cultural norms and transgressing cultural boundaries. (32) But legal regulation of cultural identities could render such traditional processes of cultural change ineffective. However difficult, cultural boundaries are scalable; legal boundaries are much less so. "Law in the domains of culture" (33) threatens to freeze cultural groups in the status quo and dramatically shift the balance of power between members and leaders of cultural groups over the creation and control of cultural meanings.
The "death of culture--turn to law" cycle I describe here has an important analogy in intellectual property law. When cyberspace and digital technology, which allow for the cheap and widespread distribution of perfect copies, threatened to bring about the "death of copyright," intellectual property holders turned to law for protection. (34) Rather than simply restoring the balance between private copyright holders and the public, however, new intellectual property laws tipped the scales so far toward protection that property owners have come out ahead of where they were before law came "to the rescue." (35) The shift in the balance of power over creative works has significant repercussions, the most important of which is restricting public access to our intellectual commons. (36) As Lawrence Lessig has warned, "in a time when the protections are being perfected--the real question for law is not, how can law aid in that protection?" Rather, the issue for law is "the duty of owners of protected property to make that property accessible." (37)
This Article makes a similarly "big claim." (38) In an age when cultural identities can be more perfectly regulated by law, the real question for law is not how to make possible the "free exercise of culture," (39) but rather, whether the self-proclaimed guardians of culture are excluding other members of the culture from making and contesting cultural meanings. (40) We ought to ensure that legal efforts to counter globalization and modernization do not buttress the hegemony of cultural elites and suppress efforts by cultural dissenters to gain autonomy and equality within their cultural context.
Scholars are beginning to voice concern about the effect cultural survival claims--if not approached critically--can have on internal cultural struggles. (41) But for the most part, critiques of "cultural survival" have hinged on traditional communitarian versus individualist arguments. (42) Betraying a...