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KEYWORDS.
Legal culture; Law and culture, legal consciousness, comparative law,
comparative sociology of law, South African legal cultire.
ABSTRACT
This essay seeks to provide an overview of how the controversial concept
of legal culture has been used so as to clarify its potential role in fruther
developing comparative studies of law in society. It shows that the term is
currently given a variety of meanings, ranging from treating it as a
variable that explains the turn to law, to exploring law as culture in
different settings. As a way of moving forward it is suggested that
attention should be given to what is assumed or asserted by given authors
with respect to three key issues: the kind of facts that are thought to make
up legal culture, the chosen approach within which the concept is
deployed, and the normative aspects of the enquiry. It ends by revisiting
Chanock’s The Making of South African Legal Culture so as to show
how this framework can help reveal the theoretical underpinnings and
contribution of a leading case study.
COMPARATIVE LEGAL RESEARCH AND LEGAL CULTURE:
FACTS, APPROACHES AND VALUES
David Nelken1
The Dickson Poon School of Law, King’s College, University of London,
The Strand, London, WC2R 2LS. [email protected]
1 I would like to thank my colleagues (and friends) Marc Hertogh,
Marina Kurchiyan and Sally Merry for their comments on the final draft.
1
What is the term legal culture good for? What part does it play- and what
part could it play in comparative socio-legal research? There is little
agreement on the answer to these questions. Some, for example, see it as
the key to explaining how far legal transfers from one society to another
are likely to be successful, whereas others reject it precisely because of its
inability to help in this endeavour2. But more is at stake than its role in
any one policy exercise. As with many social science concepts, this one
too is being used in a variety of ways. It hints at, without always bringing
fully into focus, a range of issues concerning law and culture, whether
concerned with ‘culture in law’ or ‘law in culture’ (comprising both high
culture and popular culture), as well as ‘law as culture’(see e.g. Cotterrell
2004, Kahn 2000, Maunter, 2011b, Mezey 2003).
Writers who use the term envisage culture both as something that law
already reflects and expresses and as something that law needs to address.
They treat it as relevant to enquiries into what, if anything, gives
coherence to law- related norms and practices shared by groups and
organisations, but it is also found in discussions of the way the
boundaries of what counts as legal argument are produced and patrolled.
Most importantly, for present purposes, the concept of legal culture is
often used to characterise differences between legal systems (such as
those reflected in their trends in litigation or prisons rates), and is
recommended for use when explaining why people (and societies) differ
in their use of law. And it also finds a place in accounts of pluralist
interactions between different kinds of law, or efforts to understand the
way that international or hybrid courts overcome the contrasting cultures
that judges from different jurisdictions bring with them.
2 Compare World Bank 2001 and Gillespie 2008.
2
Arguably, such a variety of uses would at least suggest the need for
some such concept. But given that there are a host of competing and
overlapping terms available to comparative socio -legal scholars, why
persist with this one?3 The question is all the more pressing given that
many critics have argued, as will be seen in this review, that the term
itself is a particularly problematic one, and is often employed in
misleading or unhelpful ways4. This essay argues that progress can be
made if we we ask three questions about any use of the term. What sort of
facts are being pointed to? How does the use of the concept form part of
different approaches to studying ‘law in society’? In what ways does a
given study of legal culture involve normative enquiry? It concludes with
3 It certainly represents an advance on the empty (but still surprisingly
common) term ‘legal system‘ which lacks any theoretical pretensions.
But genuinely alternative –or overlapping – concepts (depending on the
purpose in hand) include ‘law in action’ (Bruinsma and Blankenburg
2000)- a term that, in response to criticism, Bruinsma chose to replace
legal culture as used in the title of earlier editions of his book), ‘legal
discourse’ (Gillespie 2008), ‘legal ideology’ (Cotterrell 1997) and
‘communities’ (Cotterrell 1998) and – most obviously – ‘legal
consciousness’ (Silbey 2005). Other possibilities include ‘legal
traditions’ (Glenn 2007), ‘legal mentalities’ and ‘legal styles’ (Merryman
and Perez -Perdomo 2007), ‘legal complex’ (Karpik and Feeley 2007,
Halliday, Karpik and Feeley 2012), ‘legal epistemes’ (Legrand 1997b),
‘legal formants’ (Sacco 1991), ‘path-dependency’ (Mahoney 2000;
Pierson 2000) ‘regulatory styles’ (Haines 2005) and even ‘legal
autopoiesis’ (Teubner 1998). 4 Even Lawrence Friedman, who introduced the term in the 70’s
(Friedman 1975; 193-268) now says that he is not sure he would want to
reinvent it (Friedman 2006).
3
an extended revisiting of a study of South African legal culture designed
to show the advantages of giving attention to these questions in writing
and reading case studies of legal culture.
LEGAL CULTURE AS FACT
Scholars who compare law in different societies and settings contrast a
variety of topics, elements and structures. But what sort of ‘facts’ can be
used as evidence of these differences? Are we speaking of attitudes or
also of behaviour? How does legal culture relate to legal rules,
institutions, social structure and culture more generally? Can it be
plausibly separated from political, economic or religious culture? Does
culture designate what an individual or group holds most precious- or
their deepest unarticulated assumptions. Should we reserve the term for
irrational, or value- based action, as opposed to purely instrumental social
action? Above all perhaps, what sort and degree of coherence between the
elements of a given unit is being proposed when we speak of culture?
A frequent criticism of the term is that it confuses the part with the
whole. Lawrence Friedman, who introduced the term legal culture as a
‘term of art’, used it both to designate the ‘variable’ that, in his language,
‘sets the legal system in motion’, and also the larger whole that is made
up of social variables, as when speaking of ‘American legal culture’ or
(even) ‘modern legal culture’ (Cotterrell 1997). In response to a challenge
on this point, Friedman answered that legal culture was not itself a fact
but a category in which a number of (measurable) facts can be included.
These encompass the attitudes (and behaviour) of the legal officials and
others who animate what he calls ‘internal legal culture’, as well as the
attitudes towards the law of individuals, groups and organisations
belonging to what he calls ‘external legal culture’. It is the demands of
4
these latter groups, whether or not they choose to invoke the law and
what they ask of it- which shape its direction and content, rather than the
internal evolution of legal tradition (Friedman 1997). Friedman’s focus
on the attitudes of individuals as the key facts of legal culture has been
followed by many of those who carry out domestic or international
surveys, though their preferred term is more often ‘legal consciousness’
(Gibson and Caldeira 1996; Grodeland and Miller 2015.) But it has also
been criticised for but getting the relationship between culture and the
individual the wrong way round (Silbey 2005).
When we start at this other end of the continuum (using what
Friedman has called the ‘anthropological’ sense of the term) legal culture
is treated as a unifying, holistic concept- a widely shared way of thinking,
talking and acting that organizes social life in particular times and places.
In a paper trying to make sense of Italian court delays, I operationalized
such a broader take as follows: ‘Legal culture, in its most general sense,
is one way of describing relatively stable patterns of legally oriented
social behaviour and attitudes. The identifying elements of legal culture
range from facts about institutions such as the number and role of lawyers
or the ways judges are appointed and controlled, to various forms of
behaviour such as litigation or prison rates, and, at the other extreme,
more nebulous aspects of ideas, values, aspirations and mentalities. Like
culture itself, legal culture is about who we are not just what we do.’
(Nelken, 2004: 1; see also Nelken 2007a, 2007b, 2012).
The problem is that if legal culture includes everything there would
seem to be nothing left for it to explain. Although this challenge needs a
response (see the next section) some leading authors over-react by
breaking up what is meant by legal culture into a number of different
topics. Sally Merry suggests that we can distinguish four ‘dimensions’ of
legal culture. The first is ‘the practices and ideologies within the legal
5
system, everyday ways of getting things done, shared assumptions about
good and bad clients, and other internal rules and practices… The second
is ‘the public’s attitude toward the law. Whether the legal system is seen
as a source of corruption and ethnic preference, for example...‘Thirdly,
she argues, ‘there is the question of legal mobilisation, which refers to
how readily people define their problems in legal terms, when they turn
to the law for help. ‘ Finally, ‘A fourth dimension is legal consciousness,
the extent to which an individual sees him or herself as embedded in the
law and entitled to its protections (Merry, 2012: 56-57). 5
But even Merry concedes that ‘each of these categories overlaps
and influences the others‘ (Merry: 57). And, for most comparative socio-
legal scholars, the value of the term lies exactly in pointing to the way
culture itself embodies and creates these connections. The term legal
culture offers ‘an entry point into the ‘distinctive cultural ‘logics’ at work,
distinct ways of seeing.. into which the researcher must struggle to enter’
(Field, 2012: 324).
A further problem facing those carrying out comparative research
is how far they can (continue to) treat nation states as their ‘units’ of legal
culture. Works with titles like ‘Dutch legal culture’, (Blankenburg and
Bruensma 1991), The Japanese approach to law’ (Johnson 1996), or
‘French criminal justice’ (Hodgson 2005), presuppose the existence of
distinctive national cultures.6 Differences between legal cultures are
often thought to correspond roughly topolitical boundaries (see e.g.
Gessner, Hoeland and Varga 1996; Friedman and Perez -Perdomo 2003;
5 Similarly, Silbey 2010 distinguishes legal ideology; legal consciousness;
legalities, cultures of legality, and counter-law; and the structure of
legality. 6 Though some authors sees these as internally differentiated, as with
Bell’s text on French legal cultures (Bell 2001).
6
Kurkchiyan M. 2011). Because of the use of law in nationalising projects,
there may even be more uniformity in a national legal culture than in
respect of other aspects of culture. There is also some empirical evidence
of psychological differences in national traits in the way people relate to
each other (Bierbrauer 1994; Hofstedte 1980; Verstappen 2014). Such
historically conditioned sensibilities may persist over quite long periods.
Contrasts between national units can involve approaches to law,
regulation, administration or dispute resolution, the extent to which law is
party or state-directed (bottom- up or top- down), the role and importance
of the judiciary, or the nature of legal education and legal training. They
may concern ideas of what is meant by ‘law’ (and what law is ‘for’),
where and how it is to be found, types of legal reasoning, the role of case
law and precedent, or of general clauses as compared to detailed drafting.
There may be important differences in the degree to which given
controversies are subject to law (rather than other forms of ordering), the
role of other expertise, the part played by ‘alternatives’ to law, including
not only arbitration and mediation and the many ‘infrastructural’ ways of
discouraging or resolving disputes.
Legal culture can also be revealed by studying the specificities of
branches of law such as criminal law, family law, contract law, property
law copyright or bankruptcy. Tort law, for example, has been shown to be
a fruitful source of cultural symbols – as well as an index of social
tensions.7 But even such apparently unconnected branches of law within a
given society can manifest remarkable levels of cultural similarity
(Whitman 2005b). Those engaged in debates over why some countries
have higher rates of incarceration than others (e.g. the USA as compared
at the other extreme to Japan) are unwise to ignore, as they tend to do,
7 Shapo 2003 provides a court- centred discussion, Engel and McCann
eds. 2009, a more wide ranging one.
7
related differences in the extent to which the societies concerned engage
in civil litigation.
On the other hand, the boundaries of legal culture may not always
be national ones. The ideas of family lawyers may have more in common
with family lawyers in other jurisdictions and cultures than, say,
copyright lawyers in the same country. The assumption of a coherent
national ‘unit’ of legal culture is and always has been especially
misleading in the many places in the world characterised by political,
social and legal pluralism and competing religious and/or culturally based
normative orders. Legal systems have always been affected by a varied
processes of borrowing, imitation and imposition. 8 But increasingly, local
legal cultures are challenged by the effects of globalisation (Garapon
1995). Even the legal culture of a nation state as important as China is
subject to a variety of external influences and pressures as it embraces the
demands of capitalist economics, trade agreements with the rest of world,
and World Trade Organisation requirements. Pre-existing norms that are
local, informal, subjective and relational are challenged by the turn
towards more formality and objectivity (Potter 2001). We also witness
the growth of so-called ‘third cultures’ of international trade,
communication networks and other transnational processes, as seen for
example in lex mercatoria or cyber communities.
Students of comparative legal culture also examine similarities and
differences in meanings and logics at different macro, mezzo and micro
levels, from that of national or super- national courts (Palmer 2015) to the
culture of the local courthouse (Church 1982). National judges and other
legal actors can often decide whether or not to look to what happens
elsewhere for developing their own jurisprudence. But judges working in
8 See Benton 2002, for a particularly subtle account of the spread of
European law.
8
hybrid international criminal courts, or those appointed to the European
Court of Human Rights from different jurisdictions, are obliged to try to
find a way to create a shared legal culture. Surprisingly, they largely
succeed in doing so (Arold 2007; Nelken 2009).
We need to be careful, however, not to take claims about the
decline of the nation state too far. The rise of the transnational does not
necessarily coincide with the decline of the national (Sassen 2006).
Arguably, the European Union risks coming apart because of insufficient
recognition of the extent to which in some places at some times law is
treated as a fact whereas in others it is seen as more of a counter-factual
ideal. As important, what is referred to as globalization usually represents
the attempted imposition of given legal culture on other societies-a
‘globalised localism’. Importing countries may be offered both the
Anglo-American model whose prestige is spread by trade and the media,
or national European versions of the more intellectually impressive
continental legal systems embodied in ready-packaged codes. The Anglo-
American model is characterized by its emphasis on the link between law
and the economy rather than law and the state. But it also spreads the
ideology of ‘pragmatic legal instrumentalism’, the very idea that law is
something which does or should ‘work’.
If, for Friedman, legal culture involved studying attitudes (and
behaviour), recent work on legal culture, following the ‘interpretative
turn’, has shifted to analysing the production and circulation of
discourses. Those who focus on law as culture seek to understand how
facts adduced in legal forums connect to the ways in which facts are
constructed in everyday life as part of a culture’s way of expressing its
sense of the natural order of things (Geertz 1983). They trace the way
science, common sense and legal reasoning depend on ideas of self,
individualism and the role of the state, and show the development of the
9
idea of fairness from that of a ‘just price’ to that of the ‘meeting of
minds’ (Rosen 2008: 136, 178) .
For other interpretative scholars, legal culture, like culture itself, is
not a coherent, logical, and autonomous system of symbols but a
collection of resources that are deployed in the performance of action.
Even lay people can add new elements to the lived experience of law by
constructing intelligible and plausible claims to legal right out of
discursive resources concerning ideas of labour, property, notice, and
community consent (Silbey 2012: 329-330). Legal culture also plays a
role in constructing 'imagined communities' or 'invented traditions' whose
purported uniformity, coherence or stability will often be no more than an
ideological projection or rhetorical device (Coombe, 1998).
To sum up. With such a multiplicity of referents, including states,
organisations, institutions, groups, individuals and attitudes, what is
described as ‘culture’ will not always means the same thing or operate in
the same way (Cotterrell 1997). It is therefore important for scholars to
make clear what ‘facts’ they are referring to when speaking about legal
culture- and what gives them their unity. And different definitions of the
facts of legal culture will reflect contrasting understandings of what is
meant by culture.
LEGAL CULTURE AS APPROACH
As this suggests, the term legal culture is also part of an approach to the
study of law in society rather than simply an object of enquiry (see e.g.
Nicholson 2008). The term offers a way of looking beyond doctrinal and,
more generally, court -centred ways of thinking, so as to bring together
the ‘legal’ and ‘social’ in investigating how law ‘works, and show how it
relates to other social constructs such as trust, justice, power, and group
10
socio-legal identity’ (Kurkchiyan 2012: 221). Perspectives as varied as
legal theory, legal history, organisational sociology, comparative politics,
cultural psychology, institutional economics or semiotics may all
reference the term (though naturally these disciplines do not speak with
one voice). Crucially, comparative law scholars increasingly argue that
this approach can help substitute the old ‘legal families’ approach which
placed exaggerated importance on the historical derivation of legal rules
(Siems 2014; Husa 2015).
To respond to the accusation that some definitions of legal culture
leave nothing to explain it is important to distinguish approaches that
treat legal culture as a variable from those that seek to grasp the nuances
of its meanings.9 Friedman’s starting point that legal culture explains (or
names?) differences in the extent to which people in different societies
turn to the law (Friedman 1997) continues to inspire other scholars.
Interesting recent work has applied this idea to explain the degree of
integration of migrants in their new legal culture of arrival (Kubal 2012).
Recent Polish immigrants to the UK at first often put law on a pedestal as
an idealistic aspiration rather than as something to be followed in
9 Such differences also have implications for methods used together
evidence of legal culture. It is one thing to ask people for their attitudes
towards legal institutions, something else to offer interpretative accounts
of the logic of cultural differences which few of the members of the
culture themselves may be able to articulate. See Whitman’s rich
comparative analyses of deep - lying cultural differences, for example in
approaches to privacy, mercy or dignity (Whitman 2000, 2003, 2004b), or
the rights of producers and consumers, (Whitman, 2007). Sometimes,
too, people are unaware of the truth about their legal culture because this
is deliberately misrepresented by politicians and the media (Haltom and
McCaan 2004).
11
everyday life. When faced with the choice to comply with the full
panoply of legal requirements or remain in the black or grey economy,
semi -legality felt at first like the safe and familiar option. Interestingly
however such attitudes changed over time (Kubal 2012: 207; see also
Shamir 2015).
For Friedman legal culture also points to the relative importance of
social and technological developments, and the social pressures they
build up. Valuable historical studies have followed his lead by examining
how this shapes the role of the legislator and the courts, for example in
producing unintended outcomes of divorce law reform (DiFonzo 1997).
The term has also been employed in comparative studies showing how
courts constructed private law remedies in Britain, France, Germany and
the USA in the face of rapid industrial and social transformation
(Steinmetz 2000), or accounting for differences in nation - state responses
to mass toxic torts (Boggio 2003).
But does Friedman downplay the importance of the institutions that
shape ‘internal legal culture’? Blankenburg put forward an important
challenge using a case- study designed to explain why Germany made so
much more use of the courts than those in the contiguous areas of
Netherlands, despite being allegedly so similar socially and economically.
Comparing the range of formal and informal dispute mechanisms in both
countries, he argued that rates of litigation are better explained by
institutional and what he calls ‘infrastructural’ differences on the supply
side of law, rather than by differences in the demand for law deriving
from the folk culture of each country (Blankenburg 1997; but see also
Hertogh 2012).10
10 There was a similar, if often over -simplified, long running debate over
the supposed role of culture in explaining low rates of litigation in Japan.
Was this better explained by alleged cultural resistance to exacerbating
12
More recently, (though without citing him), Smulovitz reached
similar conclusions about the relative importance of institutions and the
supply side of legal culture in explaining socio- legal change in
Argentina. She argued that the increasing turn to formal institutions there
was related to growing judicial independence and the experience and
confidence of lawyers. By contrast, survey evidence indicated that
citizens’ ideas about law played a minor role in this process (Smulovitz
2010: 251). It is not obvious, however, that Blankenburg’s contrast
between supply and demand corresponds to the way Friedman would use
his categories of internal and external legal culture. And any effort to
explain why supply side institutions take the form they do might also
need to bring the demand side back into the picture (Nelken 1997).
What then of the criticism that efforts to use legal culture as an
explanation risk tautology? Kenney argued that, like the concept ‘political
culture’, (which may have influenced Friedman’s choice of terminology),
it is ‘everything and nothing simultaneously’ (Kenney 1996). For
Webber, too ‘legal culture risks being a superficially attractive but
ultimately obfuscating concept, insisting upon interdependency but then
cloaking that interdependency under the rubric of a single concept, doing
nothing to tease out the specific relations of cause and effect within any
social field’ (Webber 2004: 28). If we were to ask why Italy suffers such
long court delays it would indeed be circular to attribute this to legal
culture if delay was itself one of its constituent features (Nelken 2004).
conflict (Miyazawa 1987), or instead by deliberate government-created
limitations on the opportunities to go to court (see e.g. Haley 1978;
Rasmeyer and Nakazato 1999, Upham 1987; and Vanoverbeke et. al.
2014). But, whereas the Japanese debate contrasts the role of institutions
with (folk) culture, Blankenburg prefers to argue that institutional
structures and infrastructures should themselves be called legal culture.
13
One solution to the risk of tautology is to use legal culture less as
an explanation than as something that itself needs to be explained. Thus
we can set out to explain how Italian court delays are linked to a host of
specific legal, social, economic and political features of the society, as
well to the efforts to remedy them through appeals to the European Court
of Human Rights (Nelken 2004). These sort of enquiries into comparative
legal culture explore such questions as why the USA criminal justice
system is so harsh (Whitman 2003), why there is so much difference
between the effectiveness of the higher courts in India and the inadequate
performance of those lower down (Galanter 2009), or why reckless
driving is so common in Iran (Banakar 2015).
It can be especially productive to start from paradoxical or
otherwise puzzling similarities or differences. Why do the UK and
Denmark complain most about the imposition of European Union law but
then turn out to be the countries which have the best records of obedience
(Nelken 2004)? If Japan as a society tends to make relatively low use of
law to resolve conflicts why does law play such an important role in cases
involving compensation for contaminated blood, the banning of smoking
in public– or resolving trade disputes over tuna (Feldman, 1997, 2001,
2006a, 2006b)? Given the similar legal and political systems that shaped
them, why are prosecutors so influential in Russia but not in Poland
(Polak and Nelken 2010)? Why is Italy in the lead amongst states trying
to assist victims of human trafficking when it is relatively inhospitable to
the victim support movement in of criminal justice discourse (Nelken
2011)? The answer to all these puzzles lies in learning more about what is
special about the relationship of law and society in the place in question
and what explains its persistence.
In principle, we do not have to choose between either using the
term as part of the explanans or part of explanandum- we just need to be
14
clear what we are doing. We could, for example, either investigate the
causes of what we call Americal legal culture or the way its influences
other societies. Likwise, even if not well framed as a ‘cause’, legal
culture could also still be a ‘reason’ for acting. The desire to defend what
is alleged to be its distinctive culture helps explain the workings of legal
institutions in places as different as Japan or Norway. In the 1980’s, the
appearance of league tables showing Finland to have relatively high
levels of incarceration, prompted the governing classes there to take
action to reduce the imprisonment rate so as to lead it to be more similar
to (other) Scandinavian countries (Lappi- Seppala 2007). Once achieved
the low incarceration rate then became a badge of pride.
But for those who insist that we treat the cultural domain as a
resource, a practice, and a dimension of institutions, but not a residual
cause (Merry 2012), it does become difficult to know how and when
culture will be drawn on situationally.11 Other more interpretative
approaches appear still less interested in using the term legal culture in
causal explanations. They seek rather to show, by means of ‘thick
descriptions’, how law ‘constitutes’ social practices and contributes, in
Geertz’s terms, ‘to a definition of a style of social existence’ (Geertz
1983: 218). Rosen, following in his footsteps, advises us to study ‘law as
a discourse that shapes consciousness by creating the categories through
which the social world is made meaningful’ (Rosen 2008: 3). Such
hermeneutic investigations reveal how given aspects of a society’s law-
related practices resonate with other features within and outside the
conventional boundaries of the legal system.Telling differences may be
found in the local meanings of terms such as ‘discretion’ (Nelken 2013)
or ‘community’ (Zedner 1995). Changes arise in the meaning of 'contract'
11 This is acknowledged for example in efforts to predict changes in the
interpretative frameworks used by the courts (Couso et.al. 2010).
15
in a society where the individual is seen as necessarily embodied in wider
relationships (Winn 1994). It is not without significance that the
Japanese ideogram for the new concept of 'rights' came to settle on a sign
associated with 'self–interest’ rather than morality (Feldman 1997).
But must the search for explanation depend on identifying causal
variables?12 In comparing dispute -processing institutions some scholars
of civil procedure tell us that ‘processes of legal decision making share
the logic by which the culture as a whole is put together‘, arguing that
‘the metaphysics, values, symbols, and social hierarchy of any
collectivity will set the bounds within which it organizes its dispute-
handling institutions’ (Chase 2007: 5). They admit, however, that it is
important not to exaggerate the isomorphism between legal culture and its
social environment. Law, they tell us, has a discursive life of its own;
dispute institutions ‘do not move in lock step with even deeply held
values’, and ‘cultures, when contested or out of step, could with equal
plausibility explain the development of completely different dispute
institutions’ (Chase 2007: 92; my italics). As this suggests, it is harder to
make predictions with an interpretative approach – and that may often not
even be the goal. Students of legal culture must be aware of the deep
methodological divides that traverse the social sciences. They are
unlikely to be able to resolve them- but they must make clear what claims
they are making.
12 For Kurkchiyan legal culture ‘is the product of a convoluted interplay
between historical legacy, institutional performance and popular
attitudes.’ ‘(S)uch a broad picture’, she says, ‘does not allow causal
analysis, but it does have the potential to explain how law is embedded in
the social texture and how it relates to other concepts such as justice, trust
and the rule of law (Kurchiyan 2012: 250).
16
LEGAL CULTURE AS VALUE
There are a variety of ways in which normative questions enter
explicitly or implicitly into comparative enquiries about legal culture.
Most obviously the aim may be to offer evaluations, for example of
individualistic as compared to communitarian legal cultures (Tanase
2010). More prosaically, those who draw inspiration from the ‘law and
economics’ approach note that differences in legal culture have market
consequences. As Ogus puts it, ‘To the extent that they have monopolistic
power, lawyers can exploit the key features of legal culture to extract
rents: the law used can be more formalistic, more complex and more
technical than is optimal’ (Ogus 2011: 163). Whether differences in legal
cultures should be preserved as far as possible or rather normalised or
harmonised away is a matter of keen debate. Writing about what he calls
‘the politics of legal cultures’, Banakar asks how far ‘acceptance or
rejection of the legal culture of the ‘other’ is a function of an assessment
of the actual compatibility of the cultures in question, that they can or
cannot coexist in the same social space, and to what extent is it the
outcome of legal ideologies and transient socio-political interests?’
(Banakar 2008: 153).
Some writers object to the use of any expressions that include the
term culture. Cultures are too easily thought of as ‘super organic’, or
‘substantive, bounded entities’, instead of as ‘shreds and patches
remaking themselves’ (Glenn 2004); they are prone to be understood as
essentialist, over- determining, and xenophobic, culture placed too much
stress on the past governing the present (Kuper 1999). Reference to
(legal) culture can easily justify fatalism in the face of possible change, as
when it was alleged that the new East and Central European accession
countries to the European Union would be unable to escape the cultural
17
patterns inherited from their communist past (Krygier 1996-1997).
Similarly, many human rights projects see their task as overcoming
excessive deference to harmful cultural practices regarding women,
children or minorities.
But the concept is not bound to carry these connotations. The
German word kultur emerged as a defensive term to be used in romantic
opposition to the French universalizing idea of civilisation, for which
today’s discourses of democracy and human rights could be considered
equivalents (Kuper 1999). Friedman’s work is in fact about showing how
social and technological change succeeds in reshaping law. His claims
about convergence and the role of modernity, as we move to a global
legal culture based round the ideas of individualism, equality, and human
rights, are much closer to the French idea (see e.g. Friedman 1994, 2011).
In sharp contrast, in many places (and languages) legal culture is
used with an unequivocally positive meaning. This is because it is taken
to point to the aspiration towards the ‘culture of legality’, the ideal of the
rule of law.13 This is particularly common in those jurisdictions (or parts
of jurisdictions) such as the former Soviet Union, Latin America, or the
south of Italy, where state rules are systematically avoided or evaded. In
these places, seen from the state’s perspective, there is a ‘culture of
illegality’ so the normative goal of getting ‘legality’ into the culture of
everyday social and political life involves reorienting the behaviour of
such populations towards (state) law. Neo-cultural interventionists,
carriers of the latest instantiation of the ‘law and development‘
movement, seek to achieve a ’rule of law culture’ by taking into account
13 Some authors from the Global South adopt the term legal culture and
the culture of legality as equivalents, as when writing, for example, about
processes of judicialisation and juridification in Latin America (Couso et.
al. 2012).
18
the local patterns of legal consciousness. But they have been criticised for
underestimating the extent to which people can put greater legality to
uses directly contrary to the rule-of-law agenda (Cohen 2009).
As this suggests, compliance with law by individuals also has both
idealistic and instrumental dimensions. Polish immigrants are more
willing to move beyond semi -legality when experience shows them the
benefits of compliance (Kubal 2012); in Serbia it is those who have done
most well out of the larger social and economic changes in Eastern
Europe who are most likely to endorse the rule of law, whilst those who
remain disadvantaged are likely to refuse legal values (Vukovik et. al.
2014). 14 Silbey, on the other hand, is puzzled by people’s faith in legality
and finds it remarkable that diverse and sometimes contradictory legal
practices are nonetheless experienced by lay participants as a taken-for-
granted unity (Ewick and Silbey 1998). Why does the ideal of legality
retain its hold even when it does not deliver? ‘Why do people acquiesce
to a legal system that, despite its promises of equal treatment,
systematically reproduces inequality?’ (Silbey, 2005: 323). She suggests
that the discrepancy between generalized accounts of law and the specific
experiences of social actors acts as a source of law’s power.
Arguably, the term legal culture could be reserved for descriptive/
explanatory purposes, and the ‘culture of legality’ for normative and
evaluative ones. It is one thing to ask when people turn to law, another to
query whether they should. This would then make it possible to examine
what sorts of legal cultures are more or less conducive to ‘the culture of
legality’. But deciding what is involved in creating a culture of legality is
not (just) a technical question. Is it necessarily beneficial to replace given
14 Though the picture is complicated by evidence that people’s attitudes
towards the law and their actual use of the courts may sometimes be
inconsistent (Hendley 2013, Smulovitz 2010).
19
social norms with those of the nation state in the context of developing
economies places, with their typically strong legal pluralism,
institutionally weak governments, and recurrent political instability?
There can be disgreement over how far the rule of law requires
greater involvement of the courts in social life. When should political
activists choose litigation over social action? How far can courts retain
their autonomy as political conditions harden? A contemporary history of
Israeli legal culture tells us how the role of its Supreme Court changed
following the decline of political and cultural hegemony of the Labour
movement. An activist court buttressed the liberal elites, albeit protecting
negative liberties more than positive social rights, defended the secular
camp against the rise of religion, and provided a significant, if not always
consistent, defence of the Arab minority. Surprisingly, the newly
dominant political groups at first let this pass, though they have now
begun a determined counter –attack (Mauntner 2011a).
A number of other recent case-studies offer valuable examinations
of processes involving the making and unmaking of the rule of law. In
Singapore’s one party state law serves as a form of legitimation in a
regime that combines economic liberalism with political illiberalism
(Rajah 2013). Will this approach to ‘rule by law’ be taken as a model by
leaders in places such as China and Vietnam? What conditions make for
rule by law as opposed to the rule of law? The fate of political liberalism
in British post -colonies turn out to be both built on patterns of
instrumental use of law first established under colonial rule. (Halliday,
Karpik, Feeley 2012). Embracing formalism helped judges in Argentina
survive dictatorships but it also permitted those dictatorships to continue.
Currently, governments in places like Russia and Hungary have found
ways to use law instrumentally exploiting loopholes in the constitution or
packing the higher courts.
20
Another reason why discussions of legal culture have normative
valence arise from the need to define what counts as ‘legal’ in legal
culture (Ackerman 1986). The same applies to values such as ‘legality’.
Gillespie, for example, argues that the rule of law requires a state ’to
relax controls over social discourse, open law-making forums to a broad
rage of views and gives citizens effective recourse against abuses of state
power’ (Gillespie 2006). But others suggest that the call for the rule of
law needs to be related to wider social conditions (Perenboom 2003).
When made by authorised interpreters, claims about what constitute
culture – or legal culture- are ‘performative’ acts- ones with legal, and
often also social, consequences. Webber argues that social actors such as
judges collectively create a shared culture through their acts. For him.‘the
integrity of cultural explanations does not depend upon the “units” being
exclusive, fully autonomous, or strictly bounded. Rather, it depends upon
there being sufficient density of interaction to generate distinctive terms
of evaluation and debate. When there is that density, any examination of
decision-making in that context will want to take account of those terms’
(Webber 2004: 32).
But even authorised definitions of legal cultures do not always go
unchallenged. As Sezguin shows, subaltern groups often question the
legitimacy of existing power relations, and offer new images and
narratives of legality through which they will redefine their rights and
entitlements under the law. Often times they will do that without
necessarily altering the “law” or the “text” in question, but the legality
built around it (Sezguin 2012). As diaspora communities grow, so do the
problems posed by legally pluralistic societies. Legal actors, and the
experts who advise them, face a variety of challengs in understanding the
cultures of recent immigrants or other minority groups (Shah 2005). In
cases involving so-called cultural defences, for example, courts have to
21
decide if the person claiming such defences is a member of the culture of
which she claims to be part. What if the practice defended is itself
controversial within the other culture? What is to be done when other
cultures distinguish legal from moral obligations in a different way from
ours? (Renteln 2004).
Is a ‘universal ‘concept of legal culture possible Can it be theorised
except from a given cultural starting point? Seen from the prespective of
a somewhat idealised picture of European forms of social regulation,
American legal culture is found to be far too adversarial and costly
(Kagan 2001, Nelken 2003). On the other hand, when the USA is taken as
the standard, it leads to the conclusion that legal culture in Brazil lack
elements of legality (Zimmerman 2008). Many accounts of legal cultures
therefore tell us more about the observers‘ own culture than they do about
that being described (Ferrarese, 1997). It is even possible to read the
debate between Friedman and Blankenburg as one shaped by differences
in their Anglo- American and Continental European legal cultures. For
(what Civilian scholars call) Anglo- American legal culture, law should
respond to public demand – hence the priority given by Friedman to
‘external legal culture’, whereas, for the Europeans, this would risk
weakening the role of the state, legal institutions and legal professionals.
Friedman’s version of the Anglo- American idea of legal culture,
for example, may be especially unhelpful when applied to countries with
strong religious cultures such as Thailand (Engel and Engel 2010).
Instead of accepting Friedman’s own view of ‘internal’ and ‘external’
legal culture as neutral analytical categories, Engel sees them as a product
of the legal culture that they purport to analyse. For him, Friedman’s
concern with law having an ‘inside’ and an ‘outside’ is itself a reflection
of the ‘project’ of modernity, aimed at securing liberal legalism and
secularism. Such a conception of legal culture is linked to the aspiration
22
of keeping politics and economics subservient to law and ensuring that
civil society plays its proper role (Engel 2012). As this suggests, those
studying legal culture comparatively must be open to discovering that law
and culture are related elsewhere in very different and unexpected ways
and that different values are in play (see e.g. Chiba 1989; Glenn 2007;
Jacob 2014; Menski 2006).
An Illustration: The making of South African legal culture
We have argued so far that facts, approaches and values are all key
issues to be addressed in writing about and reading about legal culture.
But it is equally important to see how they interrelate. Although some
suggestions about this have already been made, an in-depth illustration
should help make this clearer. We shall take as our example Martin
Chanock’s recent monumental historical account of the effort by judges
in South Africa to maintain a semblance of liberal legalism in the period
which saw the creation of the apartheid regime.15
Chanock offers the following thoughts about the facts of legal
culture: ‘A legal culture consists of a set of assumptions, a way of doing
things, a repertoire of language, of legal forms and institutional
practices…‘(A)s with all aspects of a culture, it changes in response to
new situations, but it also reproduces itself; its new responses fit into its
existing forms’ (Chanock 2001: 23). When dealing with the tricky
question of whether these facts constitute a cultural unit, Chanock
acknowledges significant differentiation in what he nonetheless chooses
to call South African legal culture. He sets his story in a period of
unabashed empire building and huge transfer of legal institutions within
15 But I will not attempt to summarise the many substantive argument in a
book that runs to over 500 pages.
23
which this colonial society sought to craft a narrative that placed the
source of its founding authority anywhere but in the locality where it was
based. He traces the lines between the continuing – and prestigious-
English heritage, the construction/invention of Roman- Dutch law and the
re-instutionalisation of an African customary law that was made
increasingly irrelevant by changing conditions.
Chanock also points to regional specificities, such as the way the
Transvaal was most eager to abandon English law, the differences
between the towns and the countryside, and, crucially, the contrast
between the higher court’s willingness to test the legality of government
policies and the everyday work of lower courts whose decisions were
openly linked to the interests of local farmers. Above all, he explores the
many ways the new state project impacts fields such as criminal law,
labour law, land law, family law and administrative law. But his key
move is to parse legal culture as a set of interrelated, distinct but
overlapping discourses, some professional, some administrative, some
political, and some popular, all set within the broader political and social
discourses of state and society. Each of these could draw on each other,
sometimes affirmatively, sometimes critically and understood and
represented the law in different ways. Not only did judges and
legislatures speak about law, so did people at large, religious
organisations; the press, special interests and, most importantly,
politicians and bureaucrats. It turns out that, for the politicians and senior
officials who were the architects of apartheid, judges and courts are
marginal as compared to bureaucracy and the police.
The approach that Chanock adopts is clear already from his title – for him
legal culture is something that is made (and remade). The term, he tells
us, provides no overall explanation of the interrelationships between law,
society and economy, nor, for example, of the role of law in politics and
24
society. Dodging the risk of tautology, he tells us explicitly that the term
cannot provide an overall explanation of the interrelationships between
law, society and economy, nor, for example, of the role of law in politics
and society. His methodology involves reading legal texts not only as
insiders would, so as to appreciate the legal rationale, but also as
outsiders, asking what is actually going on. But putting ‘law in context’,
he argues, posits too simple a model of separability between law, politics,
economy and society. He recommends another form of contextualisation
that places the internal discourse of law within a set of related discourses
which include ’external’ discourses about law, as well as the economy,
politics, evolution, race, history and justice, and is thus able ‘to preserve
the important sense of connectedness’ (Chanock: 21) .
Chanock concedes that his emphasis on discourse can risk losing
touch with the world of events, acts, and outcomes. It tells us less than we
might want to know about how (and how far) the discourse(es) of legal
culture penetrate or affect the larger society, the topic that is central to the
work of Silbey and others in their studies of the legal consciousness of
those affected by law. But his point is that,‘culture is not a facade to be
thrust aside to reveal the real world of actions and effects’ (Chanock 2001
: 24).We could say that he is looking to find the sources of the
contradictory hegemonic legality whose residues Silbey finds in the
thinking and perceptions of those who participate, more or less critically
in the circulation of these ideas. His point is that law is not a given but a
range of questions and possibilities; a multivocality which yet claims to
have one authoritative voice. His project aims to uncover law’s role in
weaving together fantasy, imagination, myth and illusion about self and
others. This is why it is important to understand how Roman- Dutch law
was made to represent ‘Western civilisation’, or learn about the way
25
black South Africans were given "passes" from their fictional ‘tribal
homelands’ into white areas.
Finally, values are obviously central to Chanock’s enquiry. His
sympathies lie (if not uncritically) with the ideals of those who fought for
the new South Africa. Significantly, unlike critical, USA based, writers
such as Silbey, but in keeping with others advocating the ‘culture of
legality’, he is less interested in puncturing the hegemony of law but
rather in finding ways by which legality can play a genuinely significant
role in everyday life. The normative bite –which also has wider
relevance- comes from showing how in the past legal actors’ embrace of
formalism allowed them to so often ignore the law’s contribution to
severe institutionalised discrimination.
We learn that responsibility in criminal law was imposed on those
otherwise deemed incapable of being responsible. Case law upheld
freedom of contract against a background of oppressive contractual
relations, whilst professing the inconsistent ideology that black South
Africans were unable to understand voluntary promises as a form of
obligation. Overdrawn contrasts between African communalism and
European individualism were deployed as convenient. Law was colour
blind only where it suited. Enforcement of law was hamstrung where it
might damage white interests. But even where judges posed some
resistance, governments amended the law or found other ways to get
round the courts.
On the other hand, Chanock also points to some of the normative
dilemmas being faced by those shaping a new legal culture in modern
South Africa. This, he says, has been colonised not by the Westminster
state but by the ideal of constitutionalism. He points to the continuing
difficulties of reconciling form and substance, as well as the new
challenges posed both by globalisation and the politics of identity. He
26
underlines the danger to the state project of current high levels of
violence and extreme social inequality, and asks what should be done
about established practices of non -state policing, given that ‘a new
policing may mean more on the ground than a new constitutional
discourse’ (Chanock 2001: 536). For him it is the incapacities of the state
then and now that represent the major threat to the rule of law.
Overall, Chanock’s work shows the heuristic value of using the
term legal culture so as to make sense of the part played by law in South
Africa. He is especially deft at demonstrating its instrumental role in local
social struggles but also its reliance on invented tradition or particpation
in larger aspirational projects. And the story continues, as in the way
South Africa’s current experiments with law influence other places– as
with its truth and reconciliation commission, constitutional court
decisions in favour of same sex marriage, or the concept of meaningful
engagement in eviction cases.
Conclusion
This essay has examined the part that is played by the controversial
term legal culture in comparative legal studies. Whilst acknowledging
and illustrating the way the term has been used in a wide variety of ways
it argues that it would be premature to jettison it for this reason. 16 What is
needed, however, is for anyone employing the term to pay careful
attention to questions of facts, approaches and values. In addition, as
exemplified by Chanock’s work, what matters is how these are put
16 Confusion arising from different or misleading uses of current
terminology needs to be sorted out. But the call to go beyond them as in
Silbey’s talk of ‘after legal consciousness ‘ (Silbey 2005) often turn out
only to mean paying more attention to new theoretical developments.
27
together. Contributions to the field will be the more valuable the more
they offer plausible accounts of why the facts they seek to explain or
understand are best illuminated by the theoretical approach they have
adopted and the values that guide their research. Whether the facts of
legal culture are taken to be attitudes or consciousness or discourses has
implications for the appropriate approach and methods to adopt (and vice
versa). Likwise, law is not just a matter of facts but also a matter of
counter -factual expectations and aspirations. Grasping (and evaluating)
these is more than just an explanatory task and requires the exercise of
reflexivity.
Further progress in comparative legal research across the globe
involves careful research into what is changing on the ground, whilst
paying attention to developments in social science approaches and new
normative understandings. The term legal culture is not the only
candidate for this purpose.17 But its very complexity does help keep us
17 Competing terms may sometimes have advantages. Glenn, for example,
insisted that the concept of ‘tradition’ was less linked to the idea of
spatial boundaries, and was a widely used folk concept, whereas culture
is used only in the West (Glenn 2004). But, equally, they may have their
own problems. The term ‘tradition’, it is alleged, may make it too easy to
neglect socio-economic and political influences, as well as the so called
‘intentionalist’ fallacy (Whitman 2004a). The term ‘community’,
proposed by Cotterrell to do much of the work of legal culture, has been
said to operate only at a symbolic level of semantic productions and to
have nothing to do with the actual capacity of law and politics to regulate
affairs. Both ‘law in action’ and ‘living law’ (as contrasted with ‘law in
books’) separate what legal culture tries to bring together. As far as
‘autopoiesis’ is concerned, whereas one of the purposes of using the term
legal culture is to examine the relation between law and the wider culture,
28
aware of all these isues. Whilst part of culture in general, legal culture
represents an especially deliberate effort to fill older texts and practices
with new meanings. It seeks to provide for continuity and change whilst
giving the illusion of coherence (or at least ‘connectedness’) despite
manifold contradictions. Well-designed comparative case studies can
make an important contribution to learning more about how these
processes work out in different places and how they are changing.
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DISCLOSURE STATEMENT
The author is not aware of any affiliations, memberships, funding, or
financial holdings that might be perceived as affecting the objectivity of
this review.
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