Cultural Identities

Current Research

Two contemporary trends have shaped researchers' understanding and conceptualization of the effects of cultural identities on law. First, behavioral studies have explicated how identities may affect legal norms, legal institutions, and judicial behavior. Nevertheless, [Page 361]those studies often defined cultural identities as static, not as a matter of recurring construction, generation, and deconstruction. Later, scholars looked at identities in constant flux over time.

Second, critical studies of law, primarily written by critical race and radical feminist scholars, took identities as problematic, not as autonomously constructed, but as manipulatively constructed by state ideologies, social hegemonic groups, and economic interests. Identities correlated with problems of social class, race, ethnicity, gender, and sexual orientation. Mounting awareness of multiculturalism and the emergence of diverse, politically active identity groups challenged the nation-state and its ideology and legitimacy. This has further enhanced studies in the politics of identity as well as legal pluralism.

Cultural Identity as Law

The politics of identity is not separate from the legal system, but is a constitutive element of law. No understanding of legal fields, whether state, communal, or international, is promising without analyzing how cultural identities form and generate law. One cannot separate or isolate law from identities that compose our personalities and collectivities. First, legal responsiveness and democratic virtues depend on people with different identities, who differ as to what expectations law should fulfill and who narrate law differently. Second, law itself is not neutral, but reflects and is significantly constituted by cultural hegemonic groups in any society. While state law rhetorically asserts social egalitarianism, in practice it marginalizes groups that may challenge its hegemonic set of identities.

Third, law is a necessary instrument for attaining more equality among various identity groups. Often, identity groups are vehicles of mobilizing forces to attain democratic justice, although they may differ on how to use law to attain equality. The legal tactics may vary from litigation, political mobilization, or legislation, but in all instances, state law is a major focus of concern.

Cultural identities are crucial in understanding the differences between law in the books and law in practice, since an understanding of how people with various cultural identities conceive of law can aid in comprehending how they are going to practice law. Hence, current research focuses not merely on the dilemma of how law reflects and is being reflected through various identities, but also on how law is actually constituted through the practices of cultural identities. Law is not simply an infrastructure of rules for a political game, nor is it merely an ideological epiphenomenon. Law is largely an identity process in the realm of power struggles over hegemony. Through such a compound multilayered process, identities are shaped, practiced, and reconstructed, and, in turn, they constitute and reconstitute law.

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