Fault Lines

Tort Law as Cultural Practice

David M. Engel, Michael McCann

• Publisher: Stanford Law Books
• Year: 2009
• ISBN:
  9780804771207
• Edition: 1
• Topic: Law
• Subtopic: Tort Law
• Index: Law

Tort law, a fundamental building block of every legal system, features prominently in mass culture and political debates. As this pioneering anthology reveals, tort law is not simply a collection of legal rules and procedures, but a set of cultural responses to the broader problems of risk, injury, assignment of responsibility, compensation, valuation, and obligation.

Examining tort law as a cultural phenomenon and a form of cultural practice, this work makes explicit comparisons of tort law across space and time, looking at the United States, Europe, and Asia in the nineteenth, twentieth, and twenty-first centuries. It draws on theories and methods from law, sociology, political science, and anthropology to offer a truly interdisciplinary, pathbreaking view. Ultimately, tort law, the authors show, nests within a larger web of relationships and shared discursive conventions that organize social life.

PART I

On Legal Culture and Cultural Analysis of Tort Law

CHAPTER ONE

Law, Liability, and Culture

DAVID NELKEN

Few legal domains are as obviously promising for “cultural” analysis as torts, revolving as they do around questions of risk, fault, blame, responsibility, and the limits of the duty to care. Cause and effect can be defined and connected in a wide variety of ways, and attributions of such linkages are shaped (collectively and individually) by where one wants blame to end up. The contributions to this volume show that inquiries into tort law and culture can cover a wide range of topics concerned with culture in tort law, tort law in culture, and tort law as culture. Cultural approaches can provide insight into the role of this kind of law, and studies of different ways of dealing with liability in different societies can highlight their cultural differences.

Notoriously, however, the term culture can be used in many ways, ranging from referring to what is most taken for granted to that which is most manipulated. When we are faced with such protean terms as law and culture, the variety of meanings and possible interconnections is almost too large to be mapped. My interest here is only to consider how far the term legal culture can be used to add conceptual clarity to this effort to map some of the relationships between law and culture. Some of the contributors actually say that this is their aim: Lynn Mather, for example, tells us that “Tobacco litigation provides an excellent lens for comparative research on legal cultures.” But other contributions may also provide us with useful illustrations for this purpose even where the concept is not referred to explicitly. Legal culture can be relevant to their attempts to disclose the different and partially competing cultures that are reflected in any given system of attributions, to trace how the willingness to attach blame for tortlike behavior changes over time, as well as, most obviously, to compare the way liability for harm is attached in different places. Using a framework I have set out elsewhere,¹ I shall first say something about what is meant by the term legal culture, and then discuss, in turn, the units of legal culture and the role it plays in explanations.

What Is Legal Culture?

Legal culture, in its most general sense, is one way of describing relatively stable patterns of legally oriented social behavior 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 behavior 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 and not just what we do.

Inquiries into legal culture try to understand puzzling features of the role and the rule of law within given societies. Why do the United Kingdom and Denmark complain most about the imposition of European Union law but then turn out to be the countries that have the best records of obedience? Conversely, why does Italy, whose public opinion is most in favor of Europe, have such a high rate of noncompliance? Why does Holland, otherwise so similar, have such a low litigation rate compared to neighboring Germany? Why in the United States and the United Kingdom does it often take a sex scandal to create official interest in doing something about corruption, whereas in Latin countries it takes a major corruption scandal to excite interest in marital unfaithfulness? Such contrasts can lead us to reconsider broader theoretical issues in the study of law and society. How does the importance of “enforcement” as an aspect of law vary in different societies? What can be learned, and what is likely to be obscured, by defining “law” in terms of litigation rates? How do shame and guilt cultures condition the boundaries of law and in what ways does law help shape those selfsame boundaries?

These few examples are enough to suggest that findings about legal culture can have both theoretical and policy implications. But there may even be more straightforward practical advantages. Knowing more about differences in legal culture can actually save your life. One well-traveled colleague who teaches legal theory likes to tells a story of the way crossing the road when abroad requires good knowledge of the local customs. In England, he claims, you are relatively safe on pedestrian crossings, but rather less secure if you try to cross elsewhere. In Italy, he argues, you need to show about the same caution in both places; but at least motorists will do their best to avoid actually hitting you. In Germany, on the other hand, or so he alleges, you are totally safe on the pedestrian crossing. You don’t even need to look out for traffic. But, if you dare to cross elsewhere, you risk simply not being “seen.”

The sort of investigations in which the idea of legal culture finds its place are those that set out to explore empirical variation in the way law is conceived and lived rather than to establish universal truths about the nature of law, to map the existence of different concepts of law rather than establish the concept of law (Tamanaha 2001). In employing the idea of legal culture, in comparative exercises geared to exploring the similarities and differences among legal practices and legal worlds, the aim is to go beyond the tired categories so often relied on in comparative law such as “families of law” and incorporate that attention to the “law in action” and “living law” that is usually missing from comparative lawyers’ classifications and descriptions (Nelken, 1995).

The Unit of Legal Culture

There are still many interesting books (e.g., Bell 2001; Blankenburg and Bruinsma 1994; Johnson 2002) and articles (e.g., Feldman 1997, 2001) that identify legal culture with the nation-state. Collections of studies of legal culture often likewise use this as their organizing theme (Gessner, Hoeland, and Varga 1996). Rather than limit ourselves to the state level, however, patterns of legal culture can and must also be sought both at a more micro- as well as at a more macrolevel. At the subnational level the appropriate unit of legal culture may be the local court, the prosecutor’s office, or the lawyer’s consulting room. Differences between places in the same society may often be considerable. Legal culture is not necessarily uniform (organizationally and meaningfully) across different branches of law (Bell 2001). Lawyers specializing in some subjects may have less in common with other lawyers outside their field than they have with those abroad. At the macrolevel, historical membership of the continental or common law world transcends the frontiers of the nation-state. And, increasingly, the implications of these memberships are being challenged and reworked by globalizing networks of trading and other interchanges. We also need to explore what have been described as the “third cultures” of international trade, communication networks, and other transnational processes (Dezalay and Garth 1996; Snyder 1999; Teubner 1997, 1998).

Given the extent of past and present transfer of legal institutions and ideas, it is often misleading to try to relate legal culture only to its current national context (Nelken, 2003a). For example, some American authors have mistakenly tried to explain as examples of “Japanese” legal culture standard features of Continental European systems that date back in Japan only to their borrowing of these legal institutions in the last century. Many aspects of law are the result of colonialism, immigration, and conquest. Non-European countries frequently have mixed or pluralistic legal systems that testify to waves of colonial invasions or imitations of other systems (Harding 2001). Deliberate attempts at the sociolegal engineering of so called “legal transplants” can range from single laws and legal institutions to entire codes or borrowed systems of law (Nelken 2001). Law may be remade by wider national culture; but it can also itself help mold that culture. Many current legal transfers can be seen as attempts to bring about imagined and different futures, rather than to conserve the present (as the transplant metaphor might suggest). Hence ex-communist countries try to become more like selected examples of the more successful market societies, or South Africa models its new constitution on the best that Western regimes have to offer rather than on constitutional arrangements found in its nearer neighbors in Africa. The hope is that law may be a means of resolving current problems by transforming their society into one more like the source of such borrowed law; legal transfer becomes part of the effort to become more democratic, more economically successful, more secular—or more religious. In what is almost a species of sympathetic magic, borrowed law is deemed capable of bringing about the same conditions of a flourishing economy or a healthy civil society that are found in the social context from which the borrowed law has been taken.

The adoption of dissimilar legal models is perhaps most likely where the legal transfer is imposed by third parties as part of a colonial project and/or insisted on as a condition of trade, aid, alliance, or diplomatic recognition. But it has also often been sought by elites wanting to “modernize” their society or otherwise bring it into the wider family of “civilized” nations. Japan and Turkey are the most obvious examples (Harding and Orucu 2002; Likosky 2002). Even in Europe some of the laws and legal institutions that people think of as most typically their own are the result of imitation, imposition, or borrowing. Much domestic law in the nineteenth century, such as the law of copyright, was mainly invented as a response to its existence elsewhere (Sherman 1997). There are Dutch disputing mechanisms that are in fact a result of German imposition during the occupation, and which have been abandoned in Germany itself (Jettinghoff 2001). Hence, in advance of empirical investigation, it would be wrong to assume any particular “fit” between law and its environing national society or culture. In addition, the nation-state now has to come to terms with the impact of globalization (Garapon 1995). For some writers, we inhabit a “deterritorialized world”; we can participate via the media in other communities of people with whom we have no geographical proximity or common history (Coombe 2000). Hence, “all totalizing accounts of society, tradition and culture are exclusionary and enact a social violence by suppressing contingent and continually emergent differences.” Instead, Coombe says, we must face the “challenges of transnationalism and the politics of global capitalism or multiple overlapping and conflicting juridiscapes.”

Claims about the decline of the nation-state can no doubt be taken too far. Given the boundaries of jurisdiction, politics, and language, the nation-state can offer a convenient starting point for comparing legal culture. It is an empirical question how far legal culture at the national level is modified by what happens at other levels. Common influences, cultural interchange, and increasing economic interdependence (or in many cases just dependence) can all produce similarities. But, simultaneously, “increasing homogenization of social and cultural forms seems to be accompanied by a proliferation of claims to specific authenticities and identities” (Strathern 1995, 3).

We also need to take care that our comparisons do not fall into the vices of Occidentalism or Orientalism, of making other cultures seem either necessarily similar or intrinsically “other” (Cain 2000). Given that culture is, to a large extent, a matter of struggle and disagreement, the purported uniformity, coherence, or stability of given national cultures will often be no more than a rhetorical claim projected by outside observers or manipulated by elements within the culture concerned. Much that goes under the name of culture is no more—but also no less—than “imagined communities” or “invented traditions” (though these may of course be real in their effects). There is therefore some danger of reifying national stereotypes (as in the earlier examples of driving practices and pedestrians in different societies) and failing to recognize that legal culture, like all culture, is a product of the contingencies of history and is always undergoing change (Nelken 1995). It is enough to think of the transformations in attitudes toward “law and order” from Weimar to Hitlerian Germany.

One of the most pressing tasks of the comparative sociologist of law is to capture how far in actual practice what is described as globalization in fact represents the attempted imposition of one particular legal culture on other societies. Some leading authors argue that we are now seeing convergence toward a modern type of legal culture (Friedman 1994; Garland 2000), and, in particular, the recent growth of prestige of the Anglo American model that is spread by trade and the media. The Anglo American model is seen to be characterized by its emphasis on the care taken to link law and economics (rather than law and the state), procedures which rely on orality, party initiative, and negotiation inside law, as well as more broad cultural features such as individualism and the search for security through legal remedies (Heyderbrand 2001). Others insist that nation-states remain recognizably distinctive, with the extreme of “adversarial legalism” located only in the United States (Kagan 2001, 2007). It has been noted that “ideal” models for export often do not accurately describe how the law operates at home, as, for example, the American legal and regulatory system in practice often relies on inquisitorial methods. National versions of the continental European type of legal system embodied in ready-packaged codes are also being exported, especially to the ex-communist world. In addition, the ideals represented by the “rule of law” itself, as a way of providing certainty and keeping the state within bounds, seem increasingly outdated for the regulation of international commercial exchange by computer between multinational coporations that are more powerful than many of the governments of the countries in which they trade (Scheuerman 1999).

What does seem undeniable is the extent to which legal culture is becoming more of what we could call “relational.” With increasing contact between societies there are more opportunities to define one’s own legal culture in terms of relationships of attraction to or repulsion from what goes on in other societies. For example, when comparative European prison rates first began to be published in the 1980s, Finland, which was high in the list, decided to cut back on prison building, whereas Holland felt entitled to build more. What mattered was to stay within the norm. Likewise, for many European countries the continued use of the death penalty in the United States serves as a significant marker of the superiority of the former’s own legal culture.

Cultural Units and Tort Law

What are the units of tort law that are being analyzed in this book? Any cultural analysis of tort law needs to ask whether this is a useful cross-cultural category.² Are the various torts—uniting intentional torts such as racial offence or police misbehavior, with procedures for dealing with road accidents, products liability, or medical malpractice—coherent from a legal point of view? (Or from any other point of view?) What are the boundaries of tort law? As against the search across jurisdictions for “functional equivalents,” legal doctrines, and instruments that resolve similar “problems” (an approach that has been a mainstay of comparative law), cultural analysis should make us more sensitive to the power of culture to define what counts as a problem to be solved. If we are interested in legal culture, another way of getting at these questions is to ask about the unit or units we are examining. The culture of tort law looks different when we consider the part played by legislatures, judges, lawyers, juries, or textbook writers. As the contributions to this volume show, there are political and professional struggles between various units—legislatures versus courts, judges versus juries, and so on. And, as part of such struggles, the media play an important role in constructing our perceptions about when tort law is and should be used (Haltom and McCann 2004). It would be more correct to speak of the cultures rather than the culture of tort law (even though we should also not forget that actors arguing about issues of liability may also share many assumptions).

Scholars in the United States (e.g., Shapo 2003) have treated judicial decisions as reflections of and commentaries on such larger cultural battles in society and offered persuasive analyses of the values and interests vying for hegemony. Elaborated through doctrinal discussions and borrowings, tort law also responds to and shapes social developments, and sparks and is subject to political reactions and cycles. Many jurisdictions in the developed world in the twentieth century have seen, for example, consolidation of moves from fault- to risk-based liability, debates over the lottery of using the law of negligence to deal with road accidents, and arguments over the expansion of rules for products liability. The rise of what has been called the “risk society” has led to growing recognition of the unpredictable consequences of modern technological advances. While some say that this makes the case for extending more legal protection, others stress the need to reduce expectations (whether to contrast the alleged “culture of complaint” or to preserve competitive global advantage). Such debates are not disinterested. Many of the contributors to this volume claim that talk of the “litigation explosion” in the United States has a flimsy empirical basis and seek to expose not only the interests of corporations but also the role of gender and racial stereotypes in shaping arguments in and about tort law.

Any definition of tort law’s boundaries also depends on how far it circumscribes the range of institutions and discourses it treats as relevant. As various contributions demonstrate, accounts seeking to reveal the culture(s) of tort law cannot afford to limit themselves to examining the work of the courts. The number and type of cases that are litigated depends on recognition of the possibility of claiming (“naming, blaming and shaming”), the choice to employ tort remedies, the possibility of benefiting from alternative remedies or using competing modes of dispute processing, and the strategic choices of lawyers. The agencies and institutions that shape the everyday processing of tort claims—in particular the calculations of insurers and loss adjustors—introduce economic and bureaucratic rationalities that typically have little to do with the cultural messages that judges supposedly wish to convey (Ross 1980; Baker, in this volume). On the other hand, it is simplistic to see tort law as merely a technical instrument for channeling compensation to those who suffer harms. The expre...

Table of contents

• THE CULTURAL LIVES OF LAW
• Title Page
• Copyright Page
• Table of Contents
• List of Tables
• Table of Figures
• Contributors
• Introduction - Tort Law as Cultural Practice
• PART I - On Legal Culture and Cultural Analysis of Tort Law
• PART II - Different Approaches to Cultural Analysis of Tort Law
• PART III - Injury and Identity
• PART IV - Issues of Risk and Responsibility
• PART V - Causation, Duty, and Obligation
• Reference Matter
• Acknowledgments
• Notes
• Bibliography
• Cases, Statutes, and Agency Reports
• Index
• THE CULTURAL LIVES OF LAW