Globalizing law and culture: towards a cross-constitutive paradigm.

• Author: Hernandez-Truyol, Berta Esperanza
• Position: Globalization and Comparative Family Law: A Discussion of Pluralism, Universality and Markets

Good afternoon. It is a pleasure and honor to be here today. I want to thank Professors Patricia Reyhan and James Gathii for their kind invitation to participate in this most exciting conference. Thank you also to Dean Thomas Guernsey, without whose support these exciting and challenging encounters could not take place.

It is always a special pleasure, though a nerve-wracking experience, for me to return to my alma mater and be part of these intellectual conversations, particularly in this room where I suffered through courses like Trusts and Estates. Needless to say, even almost twenty-five years after graduating, I still get a peculiar feeling when reciting facts and law to former professors such as Kathy Katz, and to new friends and colleagues such as Nancy Ota, Peter Halewood, and Donna Young.

I hope I am not misunderstood when I say the faculty today looks dramatically different from back in my day. Not that the faculty wasn't wonderful back in my day. We too had change. For example, Kathy Katz was the second woman hired by this faculty. For those of you who heard last night's tribute to her, I can tell you that as a first year student in her first contracts class here at Albany Law School, she indeed was a teacher, scholar, activist, and mentor. I remember the activist part quite clearly. On the day we learned that the Equal Rights Amendment was defeated because not enough states had ratified it, she walked into class wearing a black arm band and started the class with a moment of silence. Let me tell you, as contracts students we might not have understood the concept of consideration, but I assure you, we understood that.

My comment about how this faculty looks different from back in my day is actually a very good, positive comment. Change, in fact, is precisely my focus today. This talk, titled "Glocalizing Law and Culture: Towards a Cross-Constitutive Paradigm," interrogates what factors determine whether law that effects cultural change is embraced or rejected by a culture. In this regard, I must note at the outset what I call the glocal nature of culture: it can be both local--as reflected in particular native geographies--and global--as reflected in diaspora communities.

This lecture addresses the relationship between law and culture in three general parts. The first part consists of a brief review of the theories addressing the relationship of law and culture, mainly the mirror theory. But I will suggest that there is more to the relationship of law and culture than one being an inert reflection of the other; hence my proposal for what I call, as a working concept, a cross-constitutive paradigm of law and culture. The second part reviews the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW"), (1) a law that seeks to effect change by mandating equality for women in part by identifying and attempting to change what are perceived as deleterious cultural practices. As such, CEDAW has been both successful and unsuccessful: in some instances, at least on paper, CEDAW has changed culture; in other cases, it has failed to do so. Third, I will look at Cuba as a particular location in which to explore the relationship between legal change and cultural change. Specifically, I will compare two laws in the context of Cubans in exile and Cubans on the island. This analysis allows me to suggest some factors that may provide insight as to whether or not law will be effective in changing culture. It probably need not be underscored here that, by talking about Cuba, a socialist state, I am intentionally toying with the notion of markets which, in globalization terms, are synonymous with capitalism and the so-called "free markets."

THEORIES OF CULTURE

Before presenting theories of culture, it is important to define what I mean by culture. Interestingly, many who write about culture do not bother to explain their understanding of--or the meaning they ascribe to--the term. The term, of course, may have myriad meanings. I do not mean culture in the high-brow sense. Rather, by culture, I refer to those trappings that form one's identity and influence one's perception of the world. Culture has both concrete and abstract qualities: it is a complex of information that provides meaning for an individual or community in particular circumstances. As to culture and the market, it is central to my working interrogation of cultural change that the following premise be a foundation of analysis: majority cultures should not use the trope of culture as a sword to eviscerate local traditional practices, heading down the homogenizing road of globalism, nor should minority cultures use culture and tradition as shields to insulate harmful patriarchal local practices that are affronts to human rights norms.

Most Western legal theories, from classical Greek, to legal positivism, to sociological theories, start with a basic common presumption: that law is a derivation of the culture that surrounds it, i.e., that law is a mirror of society that operates to maintain social order. (2) The mirror thesis is the idea that,

[l]egal systems do not float in some cultural void, free of space and time and social context; necessarily, they reflect what is happening in their own societies. In the long run, they assume the shape of these societies, like a glove that molds itself to the shape of a person's hand. (3) Another articulation is that "law mirrors ... a part of social life." (4)

Interestingly, the assumption that law is a mirror of society that functions to maintain social order is so strong "that it is routinely asserted by social and legal theorists without supportive evidence or argument, with a sense ... [that it is] self-evident." (5) This perhaps explains why this theory remains dominant as to the relationship between law and culture. This broad and blind acceptance, in a peculiar way, makes logical sense. Laws are, in essence, codified forms of the customs and habits of the societies in which they originate...