Understanding the instrumentality of Doctrine of Incorporation in exchanging cultural expertise: A comparative study

Culture profoundly influences the governance, law, and policy of societies. In multicultural societies, conflicts arise when legal norms clash with individuals’ cultural norms, leading to complexities in delivering justice. Cultural expertise plays a pivotal role in addressing these complexities. Factors like race, caste, gender, and place further compound matters, intertwining cultural aspects with religious, political, economic, or ecological elements. This research proposes that judges, by virtue of their experience of resolving legally pluralistic problems in multicultural states, may be identified as cultural experts in the substantive moorings of ‘cultural expertise’. The study promotes the ‘Doctrine of Incorporation’ as a judicial instrument to incorporate universally accepted notions of fairness from other jurisdictions for cultural dispute resolution. India's innovative application of the ‘Doctrine of Incorporation’ in domestic dispute resolution exemplifies the potential of judicial cultural expertise for delivering social justice. Recognising judges as cultural experts paves the way for a balanced approach to dispute resolution, fostering harmony in multicultural societies. Unlike judges, cultural experts do not preside a lis. Their involvement depends upon judicial discretion and legal directions where the dispute is prima facie cultural. In cases where culture is only circumstantial fact and subjective defence, and there is no legally direct involvement of cultural experts, the judge fills the gap acting as one to deliver justice. In conclusion, culture’s pervasive influence on governance and law necessitates acknowledging and accommodating the cultural expertise of judges in resolving conflicts.