A Dialectic Despite Itself ? Overcoming the Phenomenology of Legal Culture
| Author | Michael Salter |
| Published date | 01 December 1995 |
| Date | 01 December 1995 |
| DOI | 10.1177/096466399500400402 |
| Subject Matter | Articles |
A
DIALECTIC
DESPITE
ITSELF ?
OVERCOMING
THE
PHENOMENOLOGY
OF
LEGAL
CULTURE
MICHAEL SALTER
Lancater
university
Lancaster
University
HE
PURPOSE
of
this
article
is
to
explore
the
thesis
that
current
legal
t
scholarship
might
have
something
important
to
gain
by
analysing
our
-A.
lived-experience
of
legal
culture
in
a
fashion
that
both
participates
within
and -
through
the
process
of
an
internally
driven
transition -
moves
beyond
an
exclusively
phenomenological
approach
to
such
experience.’
The
main
theoreti-
cal
contention
is
that
a
purely
phenomenological
perspective
on
legal
culture’ -
despite
representing
a
welcome
advance
over
naively
positivistic
approaches
to
sociolegal
studies -
can
nevertheless
be
shown
to
terminate
in
irresolvable
internal
contradictions;
and
that
the
implications
of
these
contradictions
should
carry
our
analysis
of
legal
culture
beyond
the
equally
one-sided
perspectives
of
positivism
and
phenomenology.
These
implications
point
towards
the
need
for
a
perspective
capable
of
articulating
the
dialectical
character
of
this
and,
in
principle,
other
examples
of
transition
through
the
force
of
immanent
critique.
Phenomenology
alerts
us
to
the
need
to
reflect
upon
the
experiential
grounding
of
the
basic
concepts
that
we
use
to
recognize
and
categorize
our
lived-experiences.
Accordingly,
the
first
section
clarifies
some
of
the
different
ways
in
which
academic
members
of
the
legal
world
use
one
of
its
pervasive,
yet
ill-defined,
terms:
that
of
legal
culture.
Here
my
aim
is
to
suggest
that
it
is
important
for
those
who
conduct
research
on
legal
culture
to
reflect
upon
the
reflexive
problems
of
both
identifying
and
gaining
access
to
their
subject
matter.
SOCIAL
&
LEGAL
STUDIES
(SAGE,
London,
Thousand
Oaks,
CA
and
New
Delhi),
Vol.
4
(1995), 453-~76
~
_
453
454
The
second
section
addresses
a
number
of
key,
defining
facets
that
according
to
a
phenomenologically
oriented
approach
are
found
within
our
subjective
experi-
ence
of
legal
culture.
My
final
section
sets
out
some
of
the
internal
limits
and
contradictions
which
any
consistent
phenomenological
account
of
legal
culture
must
struggle
to
overcome,
and
thereby
transform
itself
into
something
more
adequate
to
the
experience
of
legal
culture
itself.
DIFFERENT
POSSIBLE
USES
OF
THE
TERM
’LEGAL
CULTURE’
No
allegedly
’external’
definition
of
legal
culture
is
likely
to
be
fruitful
without
examining
how
the
term
is
understood
and
applied
concretely
as
one
of
the
conceptual
resources
of
this
culture.
As
a
result,
a
useful
starting
point
to
my
analysis
of
some
of
the
formal,
qualitative
structures
of
legal
culture
is
to
examine
how
the
term
is
used
as
part
of
a
project
of
acquiring
cultural
self-knowledge.
There
is
certainly
no
shortage
of
academic
treatises,
including
historical,
legal
anthropological,
comparative
and
sociological,
which
use
the
category
of
legal
culture.
For
example,
studies
in
comparative
law
are,
by
virtue
of
the
overall
rationale
of
their
project,
forced
to
tackle
issues
of
cultural
differences
within
and
between
’legal
worlds’
(Hayden,
1987;
Sanders
and
Hamilton,
1992;
Wieacker,
1989;
Pinsley,
1992;
English,
1987).
Within
legal
history
the
idea
of
legal
culture
is
often
used
in
an
empirical,
descriptive
fashion.
It
is
used
to
identify
a
particular
segment
of
an
earlier
period
of
legal
experience
whose
manner
of
life
it
seeks
to
reconstruct
with
reference
to
various
archive
materials
(McClain,
1982;
Billings,
1983;
Gregory,
1991).
Alternatively,
legal
historians
have
attempted
to
investi-
gate
the
continuing
influence
of
earlier
regimes
of
categories
of
interpretation,
such
as
Roman
Law,
upon
present-day
approaches
to
our
analysis
of
legal
culture
(Hoeflich,
1992).
Within
the
sociology
of
law
tradition,
the
category
of
legal
culture
is
typically
deployed
to
characterize
certain
collective
dimensions
of
the
shared
experiences
of
both
lawyers
and
those
’outsiders’
who,
voluntarily
or
otherwise,
find
their
lives
being
altered
by
legal
processes
(Yngvesson,
1989).
Here
the
mainstream
sociologist
is
seen
as
importing
from
’outside’
legal
culture
various
quantitative
and/or
structural-functionalist
types
of
social
scientific
research
methods
and
explanatory-causal
modes
of
analysis.
Typically,
these
modes
try
to
explain
what
are
posited
as
the
straightforwardly
given
’social
facts’
of,
say,
suicide
or
juvenile
crime
by
uncovering
statistical
correlations
between
the
incidence
and
distri-
bution
of
the
topic
in
question
and
other
statistical
variables
such
as
unemploy-
ment
levels,
religious
affiliation,
poverty,
age,
gender,
social
class,
social
isolation/anomie
and
the
like
(Durkheim,
1952;
Douglas,
1967:203-29;
At-
kinson,
1978:57-66 ff;
O’Malley,
1980).
The
discovery
of
a
statistically
significant
correlation
is
then
understood
as
possible
evidence
of
a
causal
connection.
These
contextual
methods
contrast
markedly
with
the
acontextual
and
qualitative
analysis
of
’legal
rules’
that
tends
to
characterize
the
research
typically
carried
out
by
mainstream
legal
academics
(Levine
and
Howe,
1985).
The
broader
approach
of
sociologists
of
law
usually
deploys
the
category
of
legal
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