Robert Post


The relationship between law and cultural conflict is a subject that is relevant to numerous contemporary disagreements about the substance of rights. The Article does not attempt to intervene into these disagreements, but instead to construct a common framework of analysis that might facilitate constructive dialogue among those who would otherwise disagree. The framework offers three dimensions in which the relationship of law to cultural conflict might be assessed.

The first dimension concerns the sociological relationship between law and culture. The simplest model of this relationship, which the Article calls the "Devlin model," assumes that law is the expression of a coherent antecedent culture that is the ultimate source of society's identity and authority. This view of law underlies many contemporary formulations of constitutional and common law, as well as various claims to national self-determination and multiculturalism. The Devlin model is radically oversimplified, however, because it undertheorizes both law and culture. It fails to recognize the many ways in which law cannot only enforce an antecedent culture, but also constitute that culture, as well as displace it in the name of instrumental rationality. The Devlin model also fails to recognize that a society's culture is typically neither stable, coherent nor singular. The Article offers a typology of the various relationships that law can assume with cultural contestation and heterogeneity.

The second dimension concerns the form of legal intervention. Different forms of interventions place the law in different relationships with cultural conflict. Legislation differs from adjudication; criminal law differs from administration regulation. The Article uses the case of Romer v. Evans to explore how the fact of cultural conflict can affect the creation of judicially created constitutional rights. The dialectic between cultural conflict and judicially enforced constitutional rights should primarily be understood as a matter addressed by the substantive jurisprudence of constitutional law.

The third dimension concerns the nature of legal rights. Some rights, like those protected by the First Amendment, promote cultural diversity in ways that other rights, like those protected by the Equal Protection Clause do not. The first kind of rights are hospitable to cultural conflict; the second are not. The distinction turns on the difference between rights that understand cultural values as instantiated by particular forms of social relationships, and rights that understand the prevention of state regulation as a necessary but not sufficient condition for the realization of cultural values. The Article parses the various factors that are relevant for determining which kinds of rights the law ought to implement.

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