Disclosing/Invoking Legal Culture: an Introduction
| Published date | 01 December 1995 |
| Date | 01 December 1995 |
| DOI | 10.1177/096466399500400401 |
| Author | David Nelken |
| Subject Matter | Articles |
DISCLOSING/INVOKING LEGAL
CULTURE:
AN
INTRODUCTION
DAVID NELKEN
University of Macerata, Italy and University College, London
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INTEREST in comparing legal cultures is an obvious
~ concomitant to increasing contact among cultures, moves towards
trading and political unions, as well as more specific and controversial
trends such as globalization or localization. With the exception of work on the
legal profession (e.g. Abel and Lewis, 1988; Dezalay, 1990, 1991) and litigation
rates (e.g. Blankenburg, 1994, in press) sociology of law has not been in the
forefront of those seeking to understand differences between legal cultures or the
possible implications of these various trends.’ The sociological task of under-
standing and mapping the differences among legal culture bristles with
theoretical and methodological difficulties, however. What we know so far about
other legal cultures (beyond the somewhat scholastic models identified by
comparative law) is still a matter of chance: there is, for example, more literature
and discussion in English about Japanese legal culture than there is about our
neighbours in the European Union such as France, Germany or Italy. The study
of modern legal cultures is further complicated by the need to investigate
processes of mutual influence and globalization.’ Given the practical problems of
becoming a participant in more than one culture, I find that there is a strong
temptation to rely on insider accounts or occasional visits for interviewing and
observation (see, e.g. Bell, 1995). The findings of these methods can easily be
refused as anecdote, stereotyping and oversimplification. Collaborative research
projects, on the other hand, often run up against differences in academic culture
such as the lack of empirical research traditions in many countries. Full-scale
anthropological fieldwork is hardly feasible in modern technologically advanced
societies; and anthropology has in any case always been wary of comparative
SOCIAL &
LEGAL STUDIES (SAGE, London, Thousand Oaks, CA and New Delhi),
Vol. 4 (1995), 435-452
435-
436
generalizations and is now going through a crisis concerning the warrantability
of its accounts (Clifford and Marcus, 1986; Geertz, 1988).
Given these difficulties, the papers in this special issue can be no more than a
tentative attempt to describe features of legal culture in a way which could
contribute to the comparative sociology of legal cultures. With the exception of
the theoretical paper which was commissioned later, they were first presented at
a workshop at the University of Macerata entitled ’Comparing Legal Cultures’
held in May 1994.3 The contributions chosen for publication here cover a variety
of ways of focusing on the relationship among legal culture, diversity and
globalization and use a mixture of strategies (drawing on legal judgements,
interviews, novels, film, speeches and historical documents) to illuminate their
arguments. The issue opens with a theoretical proposal concerning the use of a
dialectical
.
methodology to explore the topic of legal culture. There follows a
discussion of recent and potential changes in the role of law in Mexico in the light
of the recent NAFTA
trade agreement made with the USA and Canada. Next we
have a discussion of the way the distinctive features of French legal culture may
be coming under pressure as a result of the spread of Anglo-American
approaches to law, and a study of the role of different conceptions of the state as
these affected the introduction of privatization programmes in France and Great
Britain and the USA. The final article seeks to identify the crucial differences in
the politico-legal discourse which shapes debates over ’law and order’ in Britain
and Germany.
What do these descriptions of legal culture have in common? In the first place,
each reflects firsthand research into more than one legal culture in which the goal
is less to immortalize a particular legal culture than to relate patterns of legal
behaviour and action to phenomena which go beyond national boundaries, such
as globalization of legal services, projects of economic privatization, or trends in
crime prevention. There are also some interesting overlaps in content among the
various contributions. Thus, Lopez-Ayllon and Garapon both offer surprisingly
similar reflections on what they call ’Latin legal culture’.4 All the authors pay
special attention to the link between the State and politics and the law: Prosser
and Zedner, in particular, show the influence of politico-legal discourse in the
rather different contexts of economic and criminal justice policy-making.
Disagreement between authors can itself be as instructive as convergence. Thus,
as will be seen, Garapon and Prosser provide contrasting and almost opposing
assessments of the differences between French and Anglo-American consti-
tutionalism which demand further enquiry.
Whatever overlap exists in these articles, it could still be argued that the matters
discussed can also be encountered in a typical issue of any journal in the
sociology of law. What makes this issue special can only be the way in which the
contributors explicitly address the question of legal culture in relation to the
range of topics they tackle. On
the other hand, the real message of this collection
is surely that it would be wrong to consider legal culture to be something apart. It
suggests that we need to pay more attention to the way work in the sociology of
law assumes and mobilizes a (local) vision of legal culture even (or even
especially) where the problem of legal culture is left unexplicated rather than
437
being squarely addressed. A focus on legal culture could provide a good starting
point for re-examining central problems of the discipline such as the inter-
relationship between the role and the rule of law in different societies. The
concept of legal culture is also relevant to the recent theoretical turn from the
problem of law’s effects on the social structure to the study of the cultural
significance of law (e.g. in everyday life). Finally, and perhaps most important,
concern with legal culture forces sociologists of law to confront the problem of
reflexivity - the way their framing of problems for discussion reproduces rather
than questions the taken-for-granted assumptions of their own legal - and
academic - culture. (It also suggests the necessity to situate theorists such as
Ehrlich, Weber or Luhmann in their own legal cultures.) All this takes on
particular importance at a time when globalization is encouraging the spread of
certain culturally specific ideas of law, democracy and the market as universal
panaceas. The implications of what these papers have to say about the
inextricable relationship among legal culture, political practice and scholarly
enquiry therefore go well beyond their specific descriptive claims about different
legal cultures.
Is the concept of legal culture a helpful one for these purposes? In this
introduction, I highlight some different ways of conceptualizing legal culture,
discuss how it has been studied and why it can be so difficult to grasp. In this
way, I hope to illustrate some points which need to be kept in mind not only in
reading the case-studies or snapshots of legal culture presented here but, more
generally, in work belonging to the still underdeveloped field of comparative
sociology of law. In particular, I explore how far those who write about legal
culture can succeed in transcending their own cultural assumptions about law.
WHAT IS LEGAL CULTURE?
Like any fruitful theoretical term, the meaning of legal culture is far from settled.
At the one extreme, the study of legal culture is difficult to separate from the
entire gamut of research in sociology of law; at the other, the concept can be
criticized as no more than a residual explanation of variance resorted to when
nothing else will do (what Prosser in this issue calls the ’catch-all quality’ of the
term). A by-now classical distinction introduced by Lawrence Friedman
distinguishes between the ideas and practices of those legal and political actors
who reproduce what is described as ’internal legal culture’, such as types of legal
reasoning, as contrasted to ’external legal culture’, which refers to the type and
level of expectations that ordinary (or influential) people bring to the law
(Friedman, 1975, 1985, 1990, 1994).5 Sometimes this distinction is further
specified (or oversimplified’) as one which concerns the difference between the
supply and demand for law. While Friedman himself stresses the importance of
the demand for law as what mainly shapes legal culture, others argue for the
importance of factors on the ’supply’ side, such as those which relate to the
structure and infrastructure of legal institutions (e.g. Blankenburg, 1994, in
press). Further sources of disagreement include the relative emphasis which
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should be given to legal behaviour as opposed to legal consciousness. For
example, should legal culture be seen as manifested through institutional
behaviour,’ or as a factor shaping and shaped by differences in individual legal
consciousness (e.g. Hamilton and Sanders, 1992; Bierbrauer, 1994)? Should it be
examined as a pattern of ideas which lie behind behaviour,’ or as another name
for politico-legal discourse itself?’
There are also numerous boundary problems. Depending on the matter to be
explained (and on the type of social science discipline being employed), our focus
can range from the ’World...
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