On cultural relativism

Written By: - Date published: 3:17 pm, August 16th, 2009 - 22 comments
Categories: law and "order" - Tags:

It’s a pretty rare thing for a conviction for manslaughter not to lead to some jail time. In the past 28 years, only 69 of 814 convictions haven’t resulted in a custodial sentence*. I would have thought that not getting jail time would be especially rare when the killing was at the more culpable end of the scale (eg involved intentional infliction of harm or danger, not, say, negligence) and when convicted have not acknowledged wrong-doing by pleading guilty.

So, on the face of it the sentences in the Janet Moses case do look awfully light relative to what others get for similar offences. Defence lawyer Barry Hart has said the same.

I think the only conclusion is that the fact the offenders claimed to have been undertaking a traditional Maori exorcism led to the light sentences. And it seems to have been particularly because it was Maori spirituality that was involved (the death during an ‘exorcism’ of a Korean woman by a Korean Christian preacher led to him getting jail time). That’s, of course, the conclusion that most people have drawn, including Trevor Mallard, whose comments on Red Alert were picked up in the HoS today.

Trev might have been playing closer to constitutional convention if he hadn’t commented but in cases that go extremely against public expectations of justice, it is appropriate for MPs to speak out and they have done so in the past. The door is now opened for a needed debate on cultural relativism (a concept now largely discredited in the social sciences). A few of my thoughts on this:

Should a person’s culture come into account when determining a sentence? If ignorance of the law is no excuse, why should ascribing to a different set of values be relevant? That’s not to say we should be blind to the differences in expectations and practices among our various cultures. We should be moving away from the model of imposing an Anglo monoculture. The values of different cultures should go into defining the law in the first place but they cannot be an excuse for not obeying it.

Could it really be argued that the convicted were behaving appropriately within the bounds of Maori culture anyway? Or were they just using culture as a fig-leaf?

At what point is a cultural practice, even if carried out according to the rules of that culture, abhorrent to the values of modern New Zealand? We shouldn’t ban things merely because we don’t like them in our culture (cf the wowserism by the Herald today about the Tongan New Zealander killing his dog humanely and eating it, I don’t see why that should be seen as something that ought be be stopped merely because I don’t wouldn’t do it, anymore than I would want Jews and Muslims trying to stop me being allowed to eat pork) but there are values that transcend cultures and there are things that can’t be excused merely because they are OK in a certain culture.

We don’t say that domestic violence is OK among any culture in New Zealand just because it was traditionally OK within some (or all) cultures, so I don’t see why violently restraining someone and endangering their life leading to their death would be made more acceptable or less deserving of punishment just because it was allegedly traditional practice.

22 comments on “On cultural relativism ”

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  1. Lew 1
    16 August 2009 at 3:37 pm

    Had been thinking of a post on this, but I’m too busy today. There’s a peculiar consensus here.

    L

  2. Bill 2
    16 August 2009 at 3:47 pm

    For as long as we are going to persist in our stupid habit of developing cultures then those cultures should be self policing at a community level. (Otherwise you kow-tow to a dominant culture or a clique within a culture… the one that sets the law or has the most input into the setting of the law.)

    Or the family of both accused and victim should decide the sentence. (Maybe the community or some larger entity could determine guilt or innocence, but the sentence is determined by the parties involved.)

    Whatever.

    For as long as us daft wee apes continue developing and refining cultural and religious beliefs/customs to give ourselves meaning we will create all sorts of mischief along the way…mischievousness that has no cultural or religious solution beyond simply imposing further overarching layers of culture/morality.

  3. Ianmac 3
    16 August 2009 at 3:52 pm

    Consistency of sentencing should be the issue. All of your questions above are valid Marty and agreed. It is faintly possible that those questions aside, maybe the judgement shows a compassion to fit the situation, as opposed to the common feeling that do the crime and do the time -regardless. (And throw away the key!) How about that chap who stabbed the tagger? How would he fit in here?

  4. RedLogix 4
    16 August 2009 at 3:58 pm

    All legal systems have at their root moral systems derived from the great traditional religions, Judaism, Christianity, Islam, Budhism, etc. While all of these religions have fundamental concepts that can be broadly reconciled with each other, historically they shaped numerous and highly diverse societies, that on their surface exhibit cultural practices which are quite contradictory and mutually incompatible.

    If we look only at outward cultural habits and customs, then all we see are ‘outsiders’ whom we are prone to perceive as offensive and threatening. To see under the surface, to pierce to the heart of our common humanity, requires an insight that is not often taught or learnt in our modern secular society.

    Strip away the foundations of how and why our cultures are they way they are, and all we have left is a mess of mutally incompatible social habits. Cultural relativism at it’s logical extreme amounts to nothing more than anything goes as long as some cultural precedent, however obscure or extreme, can be called on.

    What Trevor Mallard is pointing to is the void at the heart of our ‘hollow world’.

  5. Brett Dale 5
    16 August 2009 at 4:03 pm

    Culture and religion should never come into consideration when sentencing.

    It doesn’t matter what your beliefs are, where you are from, you have to obey the law of the land.

  6. RedLogix 6
    16 August 2009 at 4:10 pm

    It doesn’t matter what your beliefs are, where you are from, you have to obey the law of the land.

    At a superficial level this is true, even in this case. These people were after all charged and found guilty. The question of cultural relativity was however a plain feature of the trial, and became highly pertinent to the sentencing imposed.

    But deeper than this, it still poses the question of where does the ‘law’ come from? Who makes it, according to what principles, and who do they get to impose it on?

    For Maori this is not a null question.

    • Tigger 6.1
      16 August 2009 at 10:32 pm

      The law comes from us. From society. From civilisation. It must be flexible enough to be fair, but there are bounds – there have to be bounds – or else the grey areas become so wide and so unclear that injustice becomes rife.

      The bounds here feel very grey to me. And I can understand why non-Maori New Zealanders might start feeling a little uneasy. After the judge failed to rule on the stolen husband case and this…it starts to feel like a pattern.

      By the way, do we actually want to encourage people to do exorcisms now? They are vile, thoughtless, narrow-minded, creepy, archaic practices, handed down very often against women and gay men over centuries. This sentence is an embarrassment in a modern world.

    • RedLogix 7.1
      16 August 2009 at 5:09 pm

      The wiki article has one para that stood out for me:

      First, it implies that what is good is arbitrary, based merely upon God’s whim; if God had created the world to include the values that rape, murder, and torture were virtues, while mercy and charity were vices, then they would have been.

      The glaring error is that rape, murder and torture are not values, but acts. In the natural world these acts are routine, it is only in the rational human world that we place a value on the sanctity of life, on justice, decency and compassion. The difference is that murder, rape and torture are commited, indeed a commonplace, in the absence of these values.

      The Euthyphro dilemma is seen in a different light when good is defined by the presence of the virtues, and evil as their absence. While animals for instance share much in common with us on an emotional, instinctive level, they are incapable of forming abstract notions. My old dog for instance, as much as I admire her intelligence, perception, character and devotion has no inkling of justice, or equality. In her world it’s eat or be eaten, there is no virtue or evil, no right or wrong…. merely survival.

      Only humans are capable of forming these abstract ideas upon which we build our social and legal norms, which thrusts upon us the unique responsibility of being accountable for our choices and actions.

  8. Rex Widerstrom 8
    16 August 2009 at 5:09 pm

    I think the only conclusion is that the fact the offenders claimed to have been undertaking a traditional Maori exorcism led to the light sentences. And it seems to have been particularly because it was Maori spirituality that was involved

    That was the defence offered by the accused Marty, but France J appears to have rejected it:

    Justice Simon France today… rejected the notion that they had been acting out a religious or cultural ritual.

    It seems to me (from media reports and the fact that I have family living very close to the site of this tragedy who were telling me what they could hear that weekend as it was happening) that what occured in Wainuiomata over several days amounts to negligent homicide.

    By refusing to accept their defence and effectively substituting one of his own, France J then seems to have then used this as a basis on which to conclude their actions were at the lesser (much lesser) end of the scale.

    I’d compare it, however, to the person who drives drunk and kills a passenger. There was certainly no intent to kill, perhaps there was even good intent (“I didn’t think I’d drunk that much and he needed a ride home”) but the outcome is foreseeable and the guilt unquestionable. And the value of a human life worth more. After all, we have people sitting in jail cells for taking property.

  9. Graeme 9
    16 August 2009 at 5:55 pm

    it seems to have been particularly because it was Maori spirituality that was involved (the death during an ‘exorcism’ of a Korean woman by a Korean Christian preacher led to him getting jail time)

    That conviction was overturned on appeal. After the appeal there was never a second trial.

    • Eddie 9.1
      16 August 2009 at 6:11 pm

      We can all read wikipedia, graeme. it wasn’t over-turned on the basis of any cultural concerns, rather whether the woman had consented to the exorcism. so the overturning is irrelevant to this discussion

      • Graeme 9.1.1
        16 August 2009 at 11:16 pm

        I didn’t know it was mentioned in wikipedia – I did a small amount of work on the case. I realise the basis of the appeal decision. My comment was merely to add information into the mix – the post said someone was convicted. I was letting people know that this was overturned – that is all.

        I wasn’t using this new information to try to prove anyone wrong, or even to debate. Now some may know something they did not previously. I think that is generally a good thing.

  10. Brett Dale 10
    16 August 2009 at 7:07 pm

    The law comes from the government, and the law says your not allowed to do what these people did on any sort of level.

  11. Herman Poole 11
    16 August 2009 at 7:25 pm

    I think Trevor has figured out the the only way for Labour to get back into power is a National-Lite strategy.

    Could this be Labour’s Orewa…

  12. trippycarpet 12
    17 August 2009 at 12:06 pm

    “Could it really be argued that the convicted were behaving appropriately within the bounds of Maori culture anyway? Or were they just using culture as a fig-leaf?”

    This is the major problem I have with the Janet Moses case. The processes used to cure the makutu was excessive, so much so it did not heed to tikanga Maori. Using the guise of Maoritanga didn’t only free the guilty in this incident but paint once again an undue shadow over Maori in the media.

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