Chew, P K --- "The Pervasiveness of Culture in Conflict" [2005] LegEdDig 14; (2005) 13(3) Legal Education Digest 18
The Pervasiveness of Culture in Conflict
[2005] LegEdDig 14; (2005) 13(3) Legal Education Digest 18
54 J Legal Educ 1, 2004, pp 60–71
While others argue whether the concept of ‘culture’ should be considered at all in the study of conflict, the author begins with a different and perhaps controversial proposition: that culture is the perception-shaping lens through which we experience conflict. The concept of culture has been the focus of much scholarly attention and debate, particularly in anthropology. Her own evolving definition is that culture is a common system of knowledge and experiences that results in a set of rules or standards; these rules and standards in turn result in behaviour and beliefs that the group considers acceptable. At the same time, this definition of culture recognises the multiplicity, fluidity, and saliency of culture. It assumes that each of us is simultaneously a member of myriad culture groups and that our membership in a culture group may change over time.
This essay offers a beginning roadmap for exploring the cultural context of conflict. In the first part we begin by understanding our own cultural profile, and then we discuss how our perception of others’ cultural profiles makes a difference. The cultural landscape becomes both more realistic and more complicated when we take into account the interactive dynamics between the cultural profiles of the multiple participants in a typical dispute resolution process. The second part identifies the tensions between, on one hand, the pervasiveness of culture in conflict and, on the other hand, American legal traditions that appear contrary to the incorporation of culture into dispute resolution processes. Finally, there are practical challenges to bringing this recognition of the pervasiveness of culture into our teaching and practice of conflict resolution.
Social science research offers provocative insights into the way culture creates the backdrop for conflict. These constructs identify patterns and attributes that distinguish one group of people from another — offering contrasts between the ways individuals approach conflict or conflict resolution. The constructs of individualism/collectivism and high-context/low-context illustrate this point. One of the most widely researched of these social science constructs, the construct of individualism and collectivism, has been used to analyse cultural differences in a range of contexts, both domestic and international. In particular, they contrast the communication patterns and meanings of high-context cultures and low-context cultures. In high-context cultures, the meaning of a message is embedded in the implicitly shared social and cultural knowledge of the group. In low-context cultures, communication and meaning are more literal and direct; what is said is the actual message. The parties do not customarily intend or seek interpretations beyond that. In addition to individualism/collectivism and low-context/high-context, there are numerous other constructs.
Research illustrates how these constructs can help us understand our own cultural profiles. While these varied constructs provide a framework for comparing and understanding how people from different cultures approach conflict, some emerging social science research aids our understanding of how our cultural profiles are directly relevant to legal disputes. Not only our own cultural profiles, but our perception of others’ cultural profiles affects the cultural landscape in conflict situations. Drawing on what we see, hear, and know about someone in a dispute or problem-solving process, we make assumptions about that person’s cultural profile. Depending on our role in the dispute, these assumptions have different consequences.
In making this judicial determination, whose frame of reference is used? Most courts refer to a hypothetical ‘reasonable person’ in the plaintiff’s position. But the courts do not make clear who they have in mind as standing in the shoes of this reasonable person. What cultural profile and beliefs does this reasonable person possess?
Each legal system has its own distinctive attributes, embodied in both its procedural and substantive rules as well as the ways in which those rules are interpreted and enforced. The American system, with its particular historical basis and philosophy, is generally characterised by advocacy and adversarialness, adheres to the common law principle of precedents, and is theoretically predicated on notions of justice and individual rights. This cultural profile is apparent, for instance, in the resolution of legal disputes in the litigation process. Industries and occupational areas often have their own distinct cultural profiles in resolving disputes. Within these industries and occupations, identifiable subcultures also emerge.
While accepting the proposition that culture is pervasive in conflict, one should be sensitive to the caveats and tensions that this proposition presents. Broadly labelled, these tensions may be of a social and political, philosophical, and practical nature. Definitional and interpretive issues abound. Determining the meaning of the concept of ‘culture’ itself is a challenge. Assessing the values, norms, and attributes of a particular culture also depends on one’s perspective. A ‘culture’ also is not static with clear parameters; it is more accurately described as fluid with evolving borders. Furthermore, the saliency of a particular cultural trait will vary depending on the circumstances.
Another political and social tension is the importance of identifying and studying ‘cultures’, while recognising the risks of overgeneralisation and stereotyping. American legal tradition is predicated on principles of universalism. Rights, duties and remedies are based on uniform principles and assumptions about what is most valued. Desirable attributes for dispute resolution processes, for instance, are predictability, efficiency, fairness and effectiveness. A fundamental attribute of our common law system is following precedents, thus ensuring that these universal rules will be repeatedly enforced and reinforced. This tradition of universalism reflects both philosophical and historic doctrines as well as a national self-confidence that Americans know what is right and most principled.
Recognising the relevance of culture in resolving legal disputes raises the uncomfortable possibility that universalist principles might not be apt or that the way to define and to resolve a dispute may be dependent on the cultural context in which the dispute occurs. This prospect of cultural relativisms has been viewed as a challenge to the hallowed legal and societal traditions of American jurisprudence, and thus as something to be carefully scrutinised. Recognising and accepting in the abstract that culture is pervasive in conflict is very different from determining what to do with this recognition.
Legal scholars are still in the early stages of acquiring knowledge of the relationship between culture and conflict. While anthropologists and other social scientists have studied the topic in a range of contexts, their focus has not been on areas that are most relevant to us — disputes that involve legal issues and the effect of culture on dispute resolution processes, such as arbitration and mediation.
When social science research is used to provide more specificity, documentation, and relevance, it should be acknowledged that students are often faced with unfamiliar concepts and methodology. ‘Thinking like a lawyer’ is not the same thing as ‘thinking like a cultural social scientist’, but the question for us is whether the former should include the latter.