Obligations III: Cultural Immersion, Difference and Categories in US Comparative Law
Appreciating each legal culture according to that culture’s own perspective implies a readiness to concede that the standards by which one measures law and legality in one’s own culture need not be universally valid, and that the acculturation one has received in one’s own system colors and limits one’s vision and understanding. Immersion comparison need implies the need to be open to all differences beneath the surface, and even in spite of surface similarities, as well as the possibility of differences at the most fundamental level. We struggle today with deciding if laws and legal arguments should be gender and color-blind, at the risk of failing to validate circumstances and characteristics unique to women and racial minorities. Should laws and legal arguments make gender and color distinctions, or perpetuate dangerous stereotypes of inequality in that manner? Those legal theories, such as feminist and critical race theory, that have brought these issues to the attention of American law schools, share origins of marginalization, exclusion and exile with comparative law and with the émigré-comparitists. They do not only emanate from, and reflect, marginalized populations, but also generally suffer from marginalization within the academic curriculum of law schools. The insights they have provided into the constitution of our legal system stem in part from the greater facility that an outside observer may have in detecting features of a legal culture so entrenched and unquestioned as to be taken for granted by the insiders.