One Law for All? The Logic of Cultural Accommodation^

I.

At the same time, we live in a society in which there are many different cultures and a bewildering variety of religions and belief systems, each capable of attributing peculiar significance to the actions and circumstances in which the law of the land is interested. Two pieces of behavior that look like the same action may have different meanings for those who perform them. Two sets of circumstances that seem identical from the point of view of one culture may look quite different when described in the language of another. So how do we know when the law is the same for everyone? Is it enough that it treats the same behavior in the same physical circumstances identically; or does the rule of law only require that we treat identically pieces of behavior that have the same significance for those who perform them and, perhaps also, for those on whom they are performed?

For example, some children get together with an older adult, and he supplies them with alcohol. A priest passes a cup of wine to young communicants. Are these the same action or different actions? A man is found in a public place with a knife concealed on his person. Is this knife a dangerous and offensive weapon? Or does it belong to a Sikh, carrying a kirpan, in fulfillment of religious obligation?

the judge found he had no alternative but to give Arthur (as I suppose we should call him) the benefit of Section 1395)(b) ofthe Criminal Justice Act of 1988, which provides the following statutory defense to a charge of carrying in a public place "any article which has a blade or is sharply pointed":

it shall be a defense for a person charged with an offence under this section to prove that he had the article with him (a) for use at work; (b) for religious reasons; or (c) as part of any national costume.

The parliamentary record is pretty clear that this defense was enacted for the benefit of members of the Sikh community, not for the likes of Arthur Uther Pendragon.6 But of course that is just the sort of thing for which one must not use legislative intention; one must not use it to turn a very general exception into one that is focused on the benefit to a particular person or group. One must follow the general terms of the defense wherever they lead, or else one has given up on even this modified version of the rule of law. So in this case, the very terms of the exception laid down in the statute led the judge to dismiss the charges and order the police to give King Arthur back his Excalibur.

II.

It is natural to think of the exemption for the use of communion wine during prohibition7 - a harmless use (at best a sip and certainly not intoxicating) - as our model for religious and cultural exemptions. We exempt the conduct because we can see that it is not really the sort of thing at which the general prohibition is aimed.

other." Now, a number of witnesses, all (like Kargar) recent emigrants from Afghanistan, testified that kissing an infant son's penis is common in Afghanistan, that it is done to show love for the child, that it is acceptable up until at least the third year of the child's life, and that there are no sexual feelings involved. (Indeed, if there were sexual feelings, the same culture - Islam as practiced in Afghanistan - would punish the father's action with death.)9

other words, the Maine provision mentions body parts and specifies contact between them as the offense, and everyone, no matter what the significance of contact with those body parts is to them, is held to that norm. Now, is this what we mean by legal equality, the rule of law, one law for all?

Such an account would be plausible if the best understanding of the law (and the law's policy in this regard) had to do with body parts and physical behavior. But in fact the policy behind the statute is in large part itself cultural: it is oriented to the particular meaning - the intense sexual meaning of mouth-genital contact in contemporary American culture. Because the law is oriented toward cultural meaning in that way, it surely should be open to the possibility that the same behavior (with the same body parts) might have a quite different cultural meaning to those who only just now are becoming acquainted with America's sexual obsessions. In this case, an intelligent application of the rule-of-law ideal seems to militate against the idea of a single rule applying to everyone; it seems to argue instead for the uniform application of a standard that condemns the relevant contact on account of its sexual meaning rather than its purely behavioral characteristics.

III.

The Kargar and communion-wine cases provide examples of the need to think carefully about the application of this idea of one law for all. But that paradigm does not work for every case.

content of the obligation is in fact at odds with the intent behind the general prohibition in the statute. The general prohibition aims at a situation in which people do not present themselves to one another in public as armed, imposing, martial figures, but the religious obligation of the Sikh initiate is to present himself in exactly that light.

This paper explores the relationship between New Brunswick's two ethno-linguistic communities and the province's Progressive Conservative and Liberal parties. Using data from provincial elections from 1908 to 1999, we examine the strength of electoral support enjoyed by each party in both communities and the degree to which the parties have represented both groups in their decision-making bodies. Results from surveys of party activists are used to examine inter and intra party opinion structures on questions relating to language and ethnicity. We conclude that over the past three decades New Brunswick's political parties have adopted a brokerage approach and have managed to transcend the province's ethno-linguistic divide.

Cet article examine les relations entre les deux communautes ethnolinguistiques du NouveauBrunswick, ainsi qu'entre les partis progressiste-conservateur et liberal de la province. A l'aide des donnees des elections provinciales tenues entre 1908 et 1999, les auteurs examinent la portee de I'appui electoral accorde a chaque parti par chacune des communautes, ainsi que la mesure dans laquelle celles-ci sont representes au sein des grouper de prise de decision des partis. Les resultats d'enquetes menees aupres des militants des partis servent A examiner les structures d'opinion a l'interieur des partis et entre ceux-ci en ce qui concerne les questions liles a la langue et l'ethnicite. Les auteurs concluent que dans les trente derrieres annees, les partis politiques neo-brunswickois ont adopts une approche conciliatoire et qu'ils ont reussi a surmonter les differences ethnolinguistiques de la province.

Tensions between francophones and anglophones have often driven the national political agenda in Canada. From the hanging of Louis Riel, through an assortment of school and conscription crises to the interminable constitutional conflicts of the past four decades, our major political parties have strived to accommodate the divergent voices of French and English Canada. For obvious demographic reasons, such debates, while not entirely absent, have been significantly less common at the provincial level.' In Quebec, francophones constitute an overwhelming majority of the electorate, while in most of the other provinces, they are an all but invisible minority. Only in New Brunswick does the ethnic balance approximate that of the entire country. True, francophones were only 15.8% of the provincial population in 1871. A combination of differential birth and migration rates, however, led to the francophone proportion climbing to 38.3% by 1951 before falling back to the present-day figure of approximately 33% (Theriault, 41; statcan).2 Under such circumstances, where ethnic divisions have not only been deeply rooted but have also been significantly correlated with cleavages of religion, region and even class, the representational role of political elites is likely to be of some social import.

In this paper we examine the extent to which New Brunswick's two principal political parties (the Liberals and the Conservatives) embody the values and interests of one or both of the province's two Charter groups. In particular, we consider how ethnicity has impinged upon the two parties' distributions of electoral support and records of legislative achievements, and we consider whether these patterns have changed in modem times. Ultimately, we argue that in recent decades there has been a progressive detachment of New Brunswick's two major parties from their traditional ethnic bases. We find that until the 1970s the province's two linguistic communities were each closely identified with (and supportive of) a single political party - the francophone community with the Liberals and the anglophone community with the Conservatives. Our data indicate that this phenomenon changed dramatically in the subsequent decades, to the point today where each party has substantial representation, in both its activist and elected ranks, from both communities, and the relationship between language and the vote in New Brunswick provincial elections has declined dramatically.

Canadian Parties and the Accommodative Function

Canada's federal party system has traditionally been described using the brokerage model. The principal function of parties, in the Canadian variant of this model, is to act as agents of political integration. Parties do so by competing aggressively in all parts of the country and by including within their decision-making structures representatives of both sides of the most significant political cleavages (Siegfried, Dawson, McLeod, Brodie, Clarke). Rather than having different parties representing duelling interests, each party attempts to transcend the central cleavages and build accommodative bridges across these societal chasms. In his classic treatise on Canadian government, R. MacGregor Dawson writes that "the parties are the outstanding agents for bringing about cooperation and compromise between conflicting groups and interests of all kinds in the nation," (7) and "to gain power any party must have as its primary purpose the reconciliation of what may be the widely scattered interests of two or more of these areas" (21). The result is that "the differences within the parties can thus be more acute than between the parties themselves; and each party, if it is to command anything approaching general support from its members, must work out some kind of consensus within its own ranks" (21). This can be contrasted with systems in which party competition is centred around a society's fundamental cleavages. In these cases, parties form to represent particular sides of the most salient political disputes and make no effort at accommodation. Northern Ireland, with a traditionally absolute divide between Catholic and Protestant interests, would be an example of this type of party system.