Peter Sutton. Ch 6 Customs Not in Common. In: The Politics of Suffering (2009)
The strong form of cultural relativism fails because aboriginal law is not compatible with white law. The details, once known, offend our civilised sensibilities – sexual assaults on women, child mutilation and violent punishment for crimes
A robust cultural relativism requires overcoming feelings of repugnance of the practices of the other culture, or, acceptance of a sanitised or politically correct version. Sanitised versions are easily lampooned.
If you are an urban liberal living a comfortable distance from experiencing the repugnant reality of some aspects of remote indigenous lifestyle then it is possible to maintain a rose coloured idealism and see legal pluralism as an act of decolonisation. This is non indigenous self-redemptive feel-goodism.
Historically cultural relativism played a positive role in combatting ideas or ideologies such as social Darwinism, eugenics and racial / ethnic prejudice.
Today, the strong form of cultural relativism is in decline since those ideologies just listed are in decline.
Some people still promote aboriginal law as politically restorative but those views do not hold up well under close examination.
In the past some aspects of indigenous law were tolerated and supervised by police, eg. public leg spearings. But eventually other aspects such as carnal knowledge / sexual assault on underage promised wives by aboriginal men, or, subincision of males who were still legally children, were not tolerated. This led to charges of inconsistency by aboriginals.
As the intercultural / interethic shared social space increases between whites and aboriginals then tolerance of a dual legal system decreases.
Until the 1950s a blind eye was turned to black on black homicide provided traditional weapons were used (strangulation, clubbing, spearing). It was regarded as “blackfella business”. This broke down in the 1934 case of the killing of Kai-Umen because he was shot with a rifle and the bullet was still in his head.
Most modern people see some rights as universal rights and not just whitefella rights, eg. the equality of women, the protection of children
One aspect of the indigenous legal process is to restore equilibrium amongst the kinship group. For example, rather than hold a murderer responsible it may be blamed on a spirit inflicted by another tribe. This is different from our modern law with its focus on perpetrator and victim. There may be consequences of not allowing the indigenous process to happen, leading to further violence down the track.
However, the reasons for revisiting customary law as a political restorative are usually bad reasons or originate from ignorance:
- persistent idealism
- grasping at straws to solve high levels of disorder and crime in indigenous communities
- building the aboriginal industry
- legal cleanskins who are reinventing the wheel
The voice and language of strong cultural relativism is moralistic focusing on issues such as the evils of colonialism, Western power, racism of whites, police violence, the oppression of minorities. There is often little investigation of the on the ground realities. Also these critiques of western culture are not matched by critiques of indigenous culture.
Support for cultural relativism ebbs and flows with the NIMBY factor. When factors of repugnance, personal safety and destruction of the social fabric come to the fore then support for strong cultural relativism declines.