Book Reviews : DAVID NELKEN (ED.), Comparing Legal Cultures. Aldershot: Dartmouth, 1997, 288 pp., £42.50 hardback, £17.50 paperback
| Author | Eve Darian-Smith |
| Published date | 01 December 1998 |
| Date | 01 December 1998 |
| DOI | http://doi.org/10.1177/096466399800700417 |
| Subject Matter | Articles |
593
DAVID
NELKEN
(ED.),
Comparing
Legal
Cultures.
Aldershot:
Dartmouth,
1997,
288
pp., £42.50
hardback,
£17.50
paperback.
As
an
anthropologist
and
ex-lawyer,
I
was
excited
to
read
David
Nelken’s
edited
volume
which
explores
how
leading
sociologists
are
defining
and
analyzing
the
inter-
sections
between
’law’
and
’culture’.
Nelken’s
concise
introduction
explains
the
book’s
purpose,
which
is
to
’consider the
possibilities
and
advantages
of
using
com-
parative
work
so
as
to
clarify
the
meaning
and
character
of
legal
culture’
(p.
1).
The
aim,
in
short,
is
to
address
the
comparative
law
paradigm
and
make
its
increasingly
obvious
methodological
limitations
acceptable
and
viable
in
today’s
global
world.
The
book
is
divided
into
two
parts:
the
first
group
of
chapters
explores
current
debates
over
terms
of
reference
and
theoretical
underpinnings
of
a
comparative
sociology
of
legal
cultures;
the
second
focuses
on
specific
comparative
case
studies.
Although
I
found
the
theoretical
discussions
rather
constraining,
the
book
really
came
alive,
I
thought,
with
the
marvelous
set
of
essays
in
the
second
half.
Space
does
not
allow
me
to
do
justice
to
the
case
studies.
The
comparative
chapters
on
the
United
States
and
Italy
by
Maria
Ferrarese,
and
France
and
Italy
by
Carol
Guarnieri,
are
very
provocative
in
their
dismantling
of
the
image
of
western
law
as
a
homogenous
and
all-encompassing
legal
order.
These
are
nicely
balanced
by
a
further
two
chapters
on
Japanese
law
by
Setsuo
Miyazawa
and
Eric
Feldman
who
both
argue
for
a
need
for
detailed
ethnographic
work
in
order
to
understand
how
their
respec-
tive
studies
of
criminology
and
legal
rights
are
actually
experienced
by
legal
pro-
fessionals
and
ordinary
people
over
time,
and
in
turn
play
out
in
local
Japanese
politics.
Such
on-the-ground
experiences
affect,
according
to
Feldman,
’how
future
issues
are
conceptualized,
fought
over
and
concluded’
which
forms
the
very
process
by
which
’Japanese
legal
culture
is
created,
recreated
and
transformed’
(p.
231).
The
most
compelling
chapter
is
the
volume’s
very
last
by
Brad
Sherman
on
the
birth
of
modern
copyright
law.
Firstly,
this
study
does
not
begin
with
the
law
of
a
particu-
lar
country
and
so
assumes
the
nation-state
as
the
natural
unit
of
legal
analysis.
More-
over,
it
opens
up
discussion
to
accommodate
legal
perspectives
other
than
highly
industrialized
modern
societies
deriving
their
law
from
Anglo-American
and
civil
law
traditions.
Most
significantly,
the
essay
moves
the
reader
beyond
discussions
of
the
relative
merit
of
comparative
analyses
and
whether
one
country’s
legal
culture
can
be
categorized
as
equivalent
to
another.
Sherman,
in
examining
the
various
strategies
and
images
about law
employed
by
people
in
the
ongoing
practices
of
daily
life,
takes
as
his
object
of
study
the
interaction
of
different
legal
systems
in
the
making
of
various
cultural
values.
So
for
instance,
in
the
19th
century
British
forms
of
patent,
design
and
copyright
law
presented
’one
view
of
organizing
mental
labor,
and
over
time,
became
the
way’
in
Britain,
and
among
its
colonies
and
international
trading
partners
(p.
240).
In
my
view,
this
line
of
reasoning
is
where
the
theoretical
excitement
about
com-
parative
legal
cultures
really
begins.
Sherman
is
keen
to
rethink
and
explore
the
inter-
sections
and
overlappings
of
legal
rationales
as
well
as
the
accompanying
reconfigurations
of
power
that
occur
with
interaction.
The
existence
of
legal
cultures
as
sub-sets
of
cultural
units
and
social
structures
(i.e.
states)
is
not
taken
as
a
given.
In
this
sense,
Sherman’s
work
resonates
with
contemporary
studies
in
anthropology,
where
the
study
of
law
is
one
approach
by
which
to
explore
the
wider
contexts
of
power
governing
racial
and
gender
politics,
constructions
of
identity,
and
the
ongoing
historical
processes
of
cultural
differentiation
in
a
particular
field
or
setting.
These
set-
tings
can
be
such
things
as
a
nation-state,
a
town,
a
border
region,
or
a
transnational
entity
such
as
the
European
Union
(see
eg,
Just,
1992;
Gupta
and
Ferguson,
1997;
Maurer,
1997;
Darian-Smith,
in
press).
Given
the
exciting
case
studies
in
Part
II,
it
is
somewhat
disappointing,
and
perhaps
all
too
telling,
that
colonialism
and
the
imperialist
realities
of
an
international
political
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