Overview

Argues that a refined concept of culture can be used by American courts to better analyze cases that cover the sense of community. Supreme Court Justices frequently justify their opinions in terms of the traditions and customs of a community. Yet, the rights and interests of entities that fit neither with the state nor the individual are treated as fluid and subjective, often existing without clarity in the current legal framework. The Rights of Groups focuses on a series of specific examples to argue that a more refined concept of culture than has been employed by American courts could offer better ways to analyze a broad range of cases that employ the notion of community. Through an original reading of the Ninth Amendment, Lawrence Rosen illustrates how a constitutional consideration for group protections might be applied to decisions arising before the Supreme Court, including the decision to overturn Roe v. Wade. Similarly, in other chapters, Rosen shows how a revised theory of culture can change the concepts—including those of “community”—that courts currently apply, whether it is the application of indigenous concepts of value to revise the statutes governing intellectual property, the importance to native peoples that burial remains be returned to the group, the role a community can play in the responsibilities attendant on the prudent investor rule, the cultural organization of Western states’ water resources, or the implementation of a new basis for group defamation suits. The book thus concludes with a call for a more sophisticated concept of culture that can sharpen our usage of the legitimate rights and interests of those entities that fit neither with the state nor the individual.

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9781479830411

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Reviews

Concise yet rich in insight, The Rights of Groups is a continuation of an exemplary academic career. Rosen’s analyses here vindicate anthropology’s significant importance for understanding and confronting the present and future. He harnesses the central concepts of anthropology to illuminate contemporary jurisprudence from a view external to it. He then enters jurisprudential analysis clarifying how a term like community can have analytic teeth. For Rosen, community is not merely an add on after policy or case judgments are completed. In the 1980’s, the legal academy had as one significant thread a demand to “take rights seriously.” The point was that rights’ talk was honored only verbally and not materially. Rosen’s call here is to take culture seriously in jurisprudence itself. -- Leonard V. Kaplan, University of Wisconsin-Madison Bringing to bear stellar expertise both in anthropology and law, Lawrence Rosen deftly guides his readership through wide-ranging case studies persuasively showing how US law can benefit from greater theoretical sophistication regarding concepts like ‘community’ or ‘culture.’ Rosen’s argument must appeal to all jurists committed to a deep understanding of law. As a comparativist, I rejoice that someone of Rosen’s intellectual standing should compellingly address such challenging words as ‘community’ and ‘culture.’ These insights will stand me in excellent stead in the classroom. -- Pierre Legrand, Ecole de droit de la Sorbonne, France

Author Information

Lawrence Rosen is the Cromwell Professor of Anthropology Emeritus at Princeton University and Adjunct Professor of Law Emeritus at Columbia University. He has authored more than a dozen books, including Law as Culture, The Justice of Islam, and Legitimacy in Crisis.

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