Judging our Ancestors: Lessons from the Criminal Law

Abstract:     
How should we assess the wrongdoing of our ancestors? This is an important question in an age when slavery reparations are debated and antiterrorism policies are criticized as repetitions of the Palmer Raids shortly after World War I and the Japanese American internment of World War II.

Debate about the wrongdoing of past generations typically swings back and forth from shrill denunciation to credulous justification. Credulous justification seems, at the moment, to have the upper hand: mass-market books defending the Japanese American internment, McCarthyism, and southern secession climb the bestseller lists.

This essay notes that American criminal law has already worked through a problem quite similar to that of judging past generations. It is the problem of the so - called cultural defense - the claim tendered by immigrant defendants charged with violent crime, who maintain that they should be judged by their own cultural standards rather than this country's. The analogy to the problem of our ancestors is clear: just as a person might be excused because of where he is from, so might he be excused because of when he is from.

Yet American criminal law has largely rejected the cultural defense, primarily out of a recognition that to indulge such claims is to place powerless victims - typically abused women and children - at greater risk. The essay maintains that there is no clearly better reason for us to indulge claims for contextual excuse on behalf of those who come to us from another time than those who come to us from another place.

Keywords: cultural defense, criminal law, legal history, slavery, internment

Working Paper Series