In Pursuit of the Vernacular: Comparing Law and Order Discourse in Britain and Germany
| Published date | 01 December 1995 |
| Date | 01 December 1995 |
| DOI | 10.1177/096466399500400406 |
| Author | Lucia Zedner |
| Subject Matter | Articles |
IN
PURSUIT
OF
THE
VERNACULAR:
COMPARING
LAW
AND
ORDER
DISCOURSE
IN
BRITAIN
AND
GERMANY
LUCIA
ZEDNER
Corpus
Christi
College,
Oxford
We
need,
in
the
end,
something
rather
more
than
local
knowledge.
We
need
a
way
of
turning
its
varieties
into
commentaries
one
upon
another,
the
one
lightening
what
the
other
darkens.
(Geertz,
1983b:
233)
RIME
HAS
BEEN
increasingly
politicized
in
Britain,
held
up
as
a
~
metaphor
for
social
disorder
and
a
manifestation
of
political
rupture.’
Law
and
order
has
become
the
currency
of
heated
cross-party
debate
and,
since
1979,
a
staple
of
general
election
manifestos.
As
a
corollary,
social
problems
(from
education
and
employment
to
housing
and
the
environment)
are
increasingly
described
in
terms
of
crime.
Recast
as
truancy,
unemployment,
homelessness
and
urban
degeneration,
these
wider
social
issues
attract
attention
only
insofar
as
they
are
deemed
to
threaten
social
order.
As
crime
figures
supplant
unemployment
statistics
or
mortality
rates
as
indicators
of
the health
of
the
nation,
the
question
arises
whether
debates
about
growing
inner-city
violence
or
spiralling
prison
populations
are
really
just
about
crime
or
rather
express
some
deeper
unease.
The
anxieties
articulated
by
discourses
of
law
and
order
extend
beyond
experiences
of
victimization
or
the
rational
anticipation
of
harm.
This
lack
of
fit
between
the
’realities’
of
the
crime
problem
and
the
space
it
occupies
in
the
national
psyche
is
not
readily
explained
(Muller-Dietz,
1993: 57-9).
In
seeking
to
’
SOCIAL
&
LEGAL
STUDIES
(SAGE,
London,
Thousand
Oaks,
CA
and
New
Delhi),
Vol.
4
(1995),
517-534
517
518
understand
why
so
much
political
capital
is
invested
in
British
discourses
of
law
and
order,
comparisons
are
made
with
Germany,
a
country
similar
in
many
respects,
yet
whose
legal
culture
is
markedly
different.
The
case
for
comparison
here
rests
on
the
observation
that
the
high
profile
of
law
and
order
has
become
so
deeply
embedded
in
British
culture
as
to
appear
self-evident.
Where
immersion
in
one
legal
culture
tends
to
entrench
uncritical
assumptions,
exposure
to
other
possible
ways
of
seeing
and
shaping
the
world
not
only
excites
us
out
of
the
torpor
of
parochialism
but
demands
that
we
regard
our
domestic
topography
anew.’
Awareness
of
the
’other’
(assumptions,
values,
languages
and
forms)
obliges
us
to
recognize
the
contingency
of
our
own
laws
and
legal
practices,
and
makes
it
difficult
to
maintain
uncritical
adherence
to
the
dogmas
of
our
own
legal
culture
(Lacey,
1995).
In
this
article,
I
seek
to
illustrate
some
theoretical
and
methodological
problems
entailed
in
reconciling
sensitivity
to
local
difference
with
the
generalizing
imperatives
of
the
comparative.
I
critically
examine
the
appeal
to
universalism
in
comparative
law
and
go
on
to
consider
the
demands
made
by
Clifford
Geertz
that
we
should
recognize
the
value
of
’local
knowledge’
(Geertz,
1983b),
offering
some
thoughts
both
on
the
methodological
difficulties
of
this
approach
and
its
potential
gains.
I
then
return
to
compare
law
and
order
discourses
in
Britain
and
Germany,
looking
particularly
at
the
vocabularies
of
order
and
disorder
and
at
current
political
debates
surrounding
the
role
of
the
state
in
maintaining
order
in
both
countries.
SOME
ISSUES
IN
COMPARATIVE
METHOD
Comparative
research
often
starts
from
the
premise
that
legal
systems
are
of
the
same
genus
differing
only
in
varieties
of
form
(Langbein,
1974,
1977;
Langbein
and
Weinreb,
1978).
Comparison
here
proceeds
upon
the
basis
of
two
distinct
assumptions.
First,
that
there
are
essential
principles,
structures,
procedures
and
goals
which
constitute
the
’universals’
of
any
legal
system
(Zweigert
and
K6tz,
1992: 20).
Weigend,
for
example,
asserts
that ’some
structural
components
of
the
criminal
process
seem
to
be
universal
and
independent
of
procedural
ideology’
(Weigend,
1980:418).
Second,
and
by
implication,
it
avers
that
external
appearances
of
difference
are
no
more
than
surface
traits
concealing
the
universal
core
beneath.
According
to
this
view,
the
task
of
comparison
is
to
distinguish ’the
skeleton
common
to
all
modern
procedural
systems’
while
revealing
’significant
differences
in
their
muscles,
viscera,
and
organs’
(Ingraham,1987:
x).
This
use
of
zoological
analogy
should
alert
us
to
the
dangers
of
attempting
to
derive
conclusions
about
human
society
by
adopting
the
methodological
assumptions
of
natural
science.
The
universalizing
imperative
is
not
confined
to
comparative
studies
of
procedure
or
doctrinal
law
but
arises
also
in
respect
of
parallel
approaches
to
legal
culture.
The
rule
of
law,
the
principle
of
legality,
the
demands
of
fairness
and
the
requirement
of
equality
are
all
adduced
as
constants
of the
’western
legal
tradition’,
as
if
from
the
fog
of
local
culture
one
can
distil
universal
legal
truths
’&dquo; ~
.
t
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