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58 Miss. L.J. 405 (1988)


The United States, more than most nation-states, has a history of confrontations between one culture and another, and of law as a means of ending cultural confrontations. Again and again in America, our dominant Anglo-Saxon Protestant culture has dealt with an alien culture and, as the story is usually told, overcome it. The dominant culture has used the law to bring the vulnerable culture into conformity to what we have referred to as "the American way."

We want to suggest that such a legal figure has two ways of using his legal power to deal between cultures—ways that are different in their effect on both cultures. One way is to conform the vulnerable culture to the dominant culture: We will call that the way of assimilation.

The other way is to protect the vulnerable culture and, as the lawyer manages to locate openings in the law and politics of the time, to manipulate the dominant culture into coming to terms with the vulnerable culture. We will call that the way of preservation. In America, both methods have resulted in substantial freedom for the individual in the vulnerable culture, but the freedom that has resulted from assimilation has been a freedom expressed in theories of rights, and therefore a freedom that belongs to the individual without regard to his culture. He is, in one way of putting it, free to believe in his old vulnerable culture or to abandon it. If the vulnerable culture is in some way preserved in him, or through him, it is not because the culture has value but because the individual has rights.


Reprinted with permission of Mississippi Law Journal.



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