The connection between legal language and culture can be best seen in post-colonial settings. In particular, the respect for indigenous language and tradition is important when drafting treaties between Indian tribes and governments. Some of these treaties try to integrate the indigenous while others establish institutions intended to translate between the colonial and the indigenous system. Evidently, such interactions between two systems are problematic in terms of socio-legal communication.
In his article, ‘‘What Are You Going to Do with the Village’s Knowledge?’’ Talking Tradition, Talking Law in Hopi Tribal Court, Justin B. Richland compellingly describes the difficulty of applying Anglo-American legal principles to Hopi Indian traditions and customs. Richland presents a property dispute among members of a Hopi village. The dispute took place in front of a Hopi judge sitting as Hopi Tribal Court. This kind of court proceeding is set to accommodate Anglo-American procedure with Hopi customs and traditions. It is exactly such type of interaction between two fundamentally different legal systems that poses socio-legal challenges for all parties involved. In this particular case, the judge forwent a cross-examination and took questioning of the witnesses into his own hand. To prevent any future argument that he was partial, the judge tried to remain as abstract as possible and demanded that the witnesses only state general principles of village customs and traditions. Historically, however, such customs and traditions are the reserved knowledge of a privileged part of the village population and are transferred among members much like personal property. Therefore, the resistance of the witnesses to testify on general principles of custom and tradition was vehement. Furthermore, as the witnesses represented village elders that possessed such privileged knowledge, they challenged the (external) judge’s power to decide the case. Instead, they saw the reason for their presence in helping to decide this particular property dispute. Evidently, given such conflicting conceptions, the hearing did not go at all smoothly.
This case is an excellent illustration of the difficult relationship between law and culture. While some still challenge the relevance of culture and tradition and focus exclusively on legal principles, such an approach is problematic, as the above-mentioned case shows. The question then is how these sometimes clashing concepts of law and culture can be best accommodated. An important goal would be the cultural awareness and the respect for culture among lawyers. For comparative law this means that comparatists should not only focus on the positive laws of different legal systems, but also on their traditions and customs.
Justin B. Richland, “What Are You Going to Do With the Village’s Knowledge?” Talking Law, Talking Tradition in Hopi Tribal Court, 39 Law & Soc Rev 235-272 (2005).