Liberal Law's Fear of ‘Culture’

Hon J J Spigelman AC, Chief Justice of New South Wales, ‘Violence Against Women: The Dimensions of Fear and Culture’ (Inaugural Address to the Law, Governance and Social Justice Forum, Sydney, 15 April 2010), available at: <lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/vwFiles/spigelman150410.pdf/$file/spigelman150410.pdf> at 8 November 2010. The speech has been subsequently published as: The Hon JJ Spigelman AC, ‘Violence Against Women: The Dimensions of Fear and Culture’ (2010) 84 Australian Law Journal 372 (references hereinafter in parentheses).

See Hon J J Spigelman AC, Chief Justice of New South Wales, ‘The Forgotten Freedom: Freedom from Fear’ (Address to the Australian Academy of Law, Sydney Law School, Sydney, 17 November 2009.) This has now been published as: James Spigelman AC, ‘The Forgotten Freedom: Freedom from Fear’ (2010) 59 International and Comparative Law Quarterly 543.

This was the advertising billboard for the Sydney Morning Herald on 16 April 2010.

To the extent that Spigelman CJ describes a relation between law and culture it is, in the context of what he calls ‘the dominant European culture in this nation’ (p 373) at any rate, a somewhat simplistic one in which ‘law increasingly reflects’ cultural beliefs (p 374).

For discussion see Said Edward , Orientalism (1979).

Fitzpatrick Peter , The Mythology of Modern Law (1992), 132.

For a contemporary discussion of this dynamic in Australia, see Poynting Scott , Bin Laden in the Suburbs: Criminalising the Arab Other (2004).

Bhabha Homi K , ‘Liberalism's Sacred Cow’ in Cohen Joshua Howard Matthew Nussbaum Martha C (eds), Is Multiculturalism Bad for Women? (1999) 83.

For just one example amongst many, see the work of Dianne Otto which interrogates ‘East Asian’ challenges to the supposed universalism of human rights. See her ‘Rethinking the “Universality” of Human Rights Law’ (1997–1998) 29 Columbia Human Rights Law Review 1.

For an ‘intersectional’ engagement with the question, see Volpp Leti , ‘(Mis)Identifying Culture: Asian Women and the “Cultural Defense”’ (1994) 17 Harvard Women's Law Journal 57. See also de Pasquale Santo , ‘Provocation and the Homosexual Advance Defence: The Deployment of Culture as a Defence Strategy’ (2002) 26 Melbourne University Law Review 110.

R v Smith (Morgan) [2001] 1 AC, 159–60 (per Lord Hoffmann).

In the UK, see for example the case of Ahluwalia (1993) 96 CR App R 133. In Australian jurisdictions, see Hill (1981) 3 A Crim R 397; R (1981) 28 SASR 321.

See Pasquale de , above n 10; Howe Adrian , ‘More Folk Provoke Their Own Demise (Homophobic Violence and Sexed Excuses — Rejoining the Provocation Law Debate, Courtesy of the Homosexual Advance Defence)’ (1997) 19 Sydney Law Review 336.

Yorta Yorta (HC) (2002) 214 CLR 422, 444 (per Gleeson CJ, Gummow and Hayne JJ).

Bhabha , above n 8, 81.

Howe Adrian , ‘R v Wunungmurra: “Culture” as Usual in the Courts’ (2009) 30 Australian Feminist Law Journal 163, 168.

See Pasquale de , above n 10.