Comparing Legal Cultures

David Nelken

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351949965
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This volume cross-examines mainstream approaches to studying legal culture (e.g. those of Friedman and Blankenburg). It includes debates over the concept of legal culture and a variety of case studies of different legal cultures.

Part I
Invoking Legal Culture: Debates and Dissents

1 The Concept of Legal Culture

Roger Cotterrell

Introduction

The search for a rigorous concept of legal culture has obvious attractions for a comparative sociology of law; that is, a sociology of law offering general comparisons of the characteristics of different specific legal systems, A focus on legal culture might, indeed, be seen as a means of fusing the aspirations of sociology of law and comparative law.

Comparative law – the comparison of the different legal systems of the world (Zweigert and Kötz, 1987:2) – offers the example of a scholarly enterprise that has developed explicit conceptual frameworks for comparison between state legal systems. The idea of 'legal families', for example, whatever its difficulties, suggests that different state legal systems, or central elements of legal doctrine within them (including styles of developing and presenting doctrine, and of legal reasoning and interpretation), can be treated as having sufficient similarity to make comparison fruitful. At the same time, it suggests that these comparable systems or system elements treated as a group can be distinguished from others treated, for certain analytical purposes, as qualitatively more remote (see, for example, Zweigert and Kötz, 1987:ch.5; David and Brierley, 1985:17–22).

However, the main conceptual mechanisms of comparative law seem inadequate for the purposes of sociology of law, since what is required for the latter is a conceptual framework allowing comparison, not of legal doctrine as such, but of legal ideas and practices regarded as inseparable from a broader social context. One of the enduring problems of comparative law has been its inability to demonstrate convincingly the theoretical value of doctrinal comparisons separated from comparative analysis of the entire political, economic and social (we might call it contextual) matrix in which legal doctrine and procedures exist (cf. Friedman, 1975:201). Comparative law has seemed unable to provide viable frameworks for comparison of laws or legal systems treated as aspects of or elements within a political society (cf. Damaska, 1986:6–7). Indeed, some writers have suggested that the destiny of a comparative law that solves these problems of comparison is, in fact, to become sociology of law (cf. Hall, 1963:10–15; David and Brierley, 1985:13) or at least 'a composite of social knowledge of positive law' contributing to a humanistic sociology of law (Hall, 1963:ch.2).

The promise held out by the search for a concept of legal culture appropriate to comparative sociology of law is that of an idea that would embrace or recognize all those elements of the contextual matrix that have to be taken into account if comparisons of legal systems and their characteristic elements are to be sociologically meaningful. But the difficulty of any such concept – as of the concept of culture itself – is its imprecision and vagueness, which is a consequence of the demands made upon it and the role in analysis that it is typically required to play.

This chapter is concerned to examine in general terms the theoretical utility of a concept of legal culture. It takes, as a focus for exploring possibilities, the attempt by the American legal sociologist Lawrence Friedman since the late 1960s to elaborate and apply such a concept. The first main section of the chapter examines Friedman's various formulations and applications, over a period of more than a quarter of a century, of a concept of legal culture, and assesses how far his claims for the explanatory power of this concept are justified. Friedman's work is emphasized here because it is, by far, the most sustained effort to work with an explicit concept of legal culture in recent comparative sociology of law and to defend and elaborate theoretically its use.

My claim is that the concept, as developed and applied in Friedman's work, lacks rigour and appears – in certain crucial respects – ultimately theoretically incoherent. This result should be seen, however, less as a fault of Friedman's particular elaboration of the concept of legal culture than as a reflection of general problems in using 'culture' as an explanatory concept in theoretical analysis of law. It may, indeed, be impossible to develop a concept of legal culture with sufficient analytical precision to give it substantial utility as a component in legal theory and, especially, to allow it to indicate a significant explanatory variable in empirical research in sociology of law.

The remainder of the chapter is concerned to ask in what circumstances the concept of legal culture may, despite these problems, be valuable in social studies of law and how far some of the theoretical aims for comparative sociology of law sought by developing the concept of legal culture can be pursued by other means.

Problems of the Concept of Legal Culture

The main problems that the chapter identifies with the concept of legal culture, as developed in Friedman's work, relate to, first, the definition of the concept; second, the varieties of legal culture and their relationships; third, the causal significance and mechanisms of legal culture; and, fourth, the explanatory significance of the concept. While these problems are fundamental, an examination of them also highlights constructively criteria that should guide analytical frameworks for comparative sociology of law.

The Definition of the Concept

In Friedman's most extensive theoretical discussion of legal culture he offers a variety of characterizations: legal culture 'refers to public knowledge of and attitudes and behaviour patterns toward the legal system' (1975:193). Legal cultures may also be 'bodies of custom organically related to the culture as a whole' (1975:194). Legal culture is a part of culture generally: 'those parts of general culture – customs, opinion, ways of doing and thinking – that bend social forces toward or away from the law and in particular ways' (1975:15). Thus the emphasis is on clusters both of ideas and of behaviour patterns, intimately related. In later formulations, however, legal culture appears only as ideational: the behavioural elements appear to have been discarded. Legal culture consists of 'attitudes, values, and opinions held in society, with regard to law, the legal system, and its various parts' (1977:76), 'ideas, attitudes, values, and beliefs that people hold about the legal system' (1986:17) or 'ideas, attitudes, expectations and opinions about law, held by people in some given society' (1990:213; and see 1985:31; 1994:118).

The imprecision of these formulations makes it hard to see what exactly the concept covers and what the relationship is between the various elements said to be included within its scope. As long as explanatory significance is not attached to the concept of legal culture and it is used only as a residual category to refer to a general environment of thought, belief, practices and institutions within which law can be considered to exist, no serious problems arise. In some discussions of the concept of general culture Friedman seems to imply this approach. Thus a 'common sense view' of culture is advocated; culture merely refers to the range of individual variations in a certain environment (1990:212, 213); national culture is 'a kind of aggregate, hard to compare with other aggregates' (1975: 209). Culture appears, therefore, as a kind of residue; the contingent, even arbitrary, patterning produced by many specific, diverse and possibly unrelated factors.

This view is, however, clearly insufficient for Friedman's purposes. The patterning is held to reflect something, like a shadow of an unseen object (1990:196); therefore legal culture has significance as more than just an aggregate. As will appear, for Friedman, it is to be understood as itself a causal factor in legal development (it 'makes the law, at least in some ultimate sense' (1990:197)) and is therefore an essential component in theoretical explanation in sociology of law. For this reason the concept requires far more rigorous specification than it seems to receive. Yet the variety of meanings of legal culture here is strikingly reminiscent of the variety of meanings of the term 'culture' itself that have often been found in anthropologists' writings (cf. Geertz, 1973:4–5).

The Varieties of Legal Culture and Their Relationships

Friedman remarks that 'one can speak of legal culture at many levels of abstraction' (1975:204; cf. 1994:120). Each nation has a legal culture (1975:209); legal culture can describe 'underlying traits of a whole legal system – its ruling ideas, its flavour, its style' (1975: 15); each country or society may have its own legal culture and no two are exactly alike (1975:199). On the other hand, Friedman writes extensively of what he calls the legal culture of modernity, or modern legal culture, which is a characteristic feature of many contemporary societies (1975:204ff; 1994); elsewhere he writes of Western legal culture (1990:198—9); and even of an emergent world legal culture (1975:220).

Again, however, and especially in his more recent work, he has strongly emphasized the idea of a plurality of legal cultures – indeed, 'a dizzying array of cultures' (1990:213) – within countries or nations. In the United States, for example, there is a legal culture of rich and poor; of blacks, whites or Asians; of steelworkers or accountants; of men, women and children, and so on (1990:213); 'It should be possible to isolate a pattern for any particular group we might select' (1994:120), A complex society has a complex legal culture (1990:96). American legal culture is not one culture but many: 'There are legal conservatives, legal liberals, and all sorts of variants and subgroups. Within specific groups, legal culture consists of particular attitudes which, however, do tend to cohere, to hang together, to form clusters of related attitudes' (1985:98; and see 1986:17).

The concept of legal culture is thus stretched two ways. On the one hand, it points towards broad comparison and the recognition of extremely wide historical tendencies or movements that are certainly not contained by the boundaries of nations or state legal systems. On the other hand, the concept is invoked to recognize familiar themes of legal pluralism as understood in its social scientific sense (cf. Merry, 1988). Up to a point, this catholicity of application suggests a concept of considerable subtlety. Legal culture does not appear as a unitary concept but indicates an immense, multitextured overlay of levels and regions of culture, varying in content, scope and influence and in their relation to the institutions, practices and knowledges of state legal systems.

Looked at in another way, however, the highly flexible idea of legal culture presents serious problems for its theoretical application when specific questions are asked about the relationship between legal culture and particular aspects of state legal systems. If legal culture refers to so many levels and regions of culture (with the scope of each of these ultimately indeterminate because of the indeterminacy of the scope of the idea of legal culture itself) the problem of specifying how to use the concept as a theoretical component in comparative sociology of law remains.

Friedman has consistently described a fundamental duality of legal culture which may in some respects cut across the various levels or regions of legal culture noted above. He distinguishes in a broad manner, reminiscent in this respect of Savigny (Savigny, 1831:28–9), between the legal culture of 'those members of society who perform specialised legal tasks' (Friedman, 1975:233) and that of other citizens. The legal culture of legal professionals, which Friedman considers 'specially important' (1975:194) is 'internal' legal culture. Contrasted with it is what he has variously called 'external' (1975:223; 1986:17), 'popular' (1990:4) or 'lay' (1977:76) legal culture. The relationship between 'internal' and 'external' legal culture remains, however, very unclear. It is not apparent why internal legal culture must be regarded, sociologically, as specially important, nor why exactly the behaviour and attitudes of professionals have a great effect on the pattern of demands in the legal system (cf. Friedman, 1975:194). This is a crucial matter given that, as will appear, the concept of legal culture is intended to explain much that is socially significant about the workings of legal systems.

Lawyers' legal thought, according to Friedman, is necessarily bound to its culture and culture determines the limits within which legal thought can change (1975:206). Internal legal culture reflects the main traits of lay (or external) legal culture (1977:79). Nevertheless, in his view, different kinds of professional legal reasoning – if this is taken to mean the formal, authoritative stating of reasons for a legal decision – are socially significant. Legal reasoning may tend towards closure or openness, and towards innovativeness in doctrine or resistance to innovation. Different types of legal system can be classified in terms of the types of reasoning that dominate within them. Such matters as legalism, reliance on legal fictions, the use of reasoning by analogy, and specific aspects of judicial language and style, can be related to these classifications.

It remains unclear from Friedman's discussions, however, just what social consequence these various matters are considered to have, although he clearly considers them to be expressions or products of internal legal culture. Equally, it remains unclear how internal legal culture, in this sense, is to be distinguished from what comparative lawyers think of as the 'style' of a legal system or legal family (cf. Zweigert and Kötz, 1987:68ff). Yet Friedman suggests that the idea of legal families is not useful for sociology of law because stylistic differences between legal families do not necessarily correlate with contrasts in socioeconomic conditions of existence of law. Hence differences between families of law, unlike differences between legal cultures, may be socially relatively insignificant (1975:202; 1977:75–6). If this is because they are based only on arbitrary aggregations of traits, it seems that this may also be a characteristic of legal culture, at least in some of its forms, since, as has been seen, this can also be considered merely as a range of individual variations, culture itself being 'a kind of aggregate'.

As will appear, the lack of clarity in explaining the sociological relationship between internal and external legal culture has serious consequences for the explanatory usefulness of the concept of legal culture. The cause of this lack of clarity seems easily identifiable, however. While, as has been noted above, Friedman emphasizes the diversity and multiple levels and regions of legal culture, ultimately he continues to use the concept of legal culture in a way that implies unities of what may be extremely diverse elements of ideas, practices, values and traditions. Thus the use of the concept of legal culture encourages a view of 'internal' legal culture as a unity set against 'external' legal culture.

By contrast, in, for example, Weber's rich analyses of the relationships between styles of...

Table of contents

• Cover
• Half Title
• Dedication
• Title
• Copyright
• Contents
• List of Contributors
• Comparing Legal Cultures: An Introduction
• PART I INVOKING LEGAL CULTURE: DEBATES AND DISSENTS
• PART II DISCLOSING LEGAL CULTURE: THE PRODUCTION OF DIFFERENCE
• Index