Comparing legal cultures

An introduction to the main issues

by

Joxerramon Bengoetxea

Day One – Plan for the course – reading assignments

Day One – introducing and comparing legal cultures -

examples

• The day in the news – • Kissing in india• Abortion in Poland• Muslim courts in the UK• US judicial influence• Regulating the system• US and rule of law• Jurors and technology

Day One – main issues

• Concept of culture – vague, polysemic• Culture and society, law, religion, politics• Elements: values, norms, institutions, artifacts-material,

forms of life, symbols• (legal) Cultures and subcultures;• Legal culture not the same as law – law as doctrine, law

as social practice, law as ideology• Law: institutional normative order – law as interpretive• Comparing legal cultures not the same as comparative

law – related disciplines: legal tradition, legal theory and philosophy, sociology of law

The Concept of cultureThe word culture, from the Latin colo, -ere, "to cultivate", generally refers to patterns of human activity and the symbolic structures that give such activity significance. Culture has been called "the way of life for an entire society." As such, it includes codes of manners, dress, language, religion, rituals, norms of behavior and systems of belief

A common way of understanding culture sees it as consisting of four elements that are "passed on from generation to generation by learning alone":1 values comprise ideas about what in life seems important. They guide the rest of the cultur2 norms consist of expectations of how people will behave in various situations. Each culture has methods, called sanctions, of enforcing its norms. Sanctions vary with the importance of the norm; norms that a society enforces formally have the status of laws 3 institutions are the structures of a society within which values and norms are transmitted4 artifacts... —things, or aspects of material culture—derive from a culture's values and norms. (from Wiki)

SubculturesLarge societies often have subcultures, or groups of people with distinct sets of behavior and beliefs that differentiate them from a larger culture of which they are a part. The subculture may be distinctive because of the age of its members, or by their race, ethnicity, class or gender. The qualities that determine a subculture as distinct may be aesthetic, religious, occupational, political, sexual or a combination of these factors. But is subculture a value-loaded concept? Even if it is neutral, is it useful at all?

Culture change is complex and has far-ranging effects. Sociologists and anthropologists believe that a holistic approach to the study of cultures and their environments is needed to understand all of the various aspects of change. Human existence may best be looked at as a "multifaceted whole." Only from this vantage can one grasp the realities of culture change.

Culture and SymbolsSymbols make culture possible, reproducible and readable. They are the "webs of significance" , they give regularity, unity and systematicity to the practices of a group. Geertz: C is (1) a system of symbols (2) reinforced by ceremonial action which acts (3) to establish powerful, pervasive and long-lasting moods and motivations in men.

Main Issues in comparing legal cultures- contd

• Concept of law – Hart - concept of norms – social norms

• Pluralism and legal cultures• Law in the heads, law in the books, law as

institutions, law in action (Blankenburg)• Internal and external legal culture

(Friedman)• Culture and the legal professions• Form (procedure) and substance

Main issues cont.d – methodological issues

• Legal culture as the context of explanation and the object of explanation – circularity

• Understanding a foreign legal culture – legal anthropology

• Law and the (non-law) normative in other cultures and societies

• E.g. soft law and governance and other forms of regulation, deregulation

Main issues in Comparing legal cultures cont.d Trends and dynamics

• Path dependency and tradition• Diffusion, transplants• Globalisation; historical waves of globalisation

influencing legal cultures: Roman Law, Code Napoleon, Law and Order, HR, Financial crisis

• Convergence: voluntary or imposed?• The global trends: transnational business, the

neoliberal order, the European global lawyer, altermondialism resistance and alternative

The whole and the parts in Legal Culture• The elements or the Whole – understanding a whole legal culture or

only (some of) its elements.

The elements are a complex set of layers: the Gessner line

1. The sources: The legal norms, (the core box)2. The court decisions and dogmatics, This is already reconstructed3. The institutional contexts: the judicial system and other institutional

actors,4. The non-institutional context and actors: lawyers (???), citizens,

business (private interests)But also the other approaches:5. the litigation rates and other indicators of DR and of governance;

(this is really a different question)6. the legal theories and legal philosophies,7. scientific explanations and knowledge and8. social engineering assumptions about law, regulation and

adjudication

The comparative and historical dimensions apply at all levels

Day Two - Legal Pluralisms• World-wide phenomena: pluralism, globalisation,

transplants, translations, loans;• What is the relation between legal pluralism and

legal culture? (plurality of legal cultures)• major trends: 1. globalisation and domination vs

resistance and transnational vs local standards; 2. formalism (hard law) and fragmentation; soft instruments; this takes us to Dispute resolution and regulation (policy-making, policy mix, reg and dereg…)

• The “foreign” legal culture might be next door!!! Plurality and pluralism, description v ideology

Galanter and Trujillo: Plurality of Pluralism

• Definition• Legal pluralism is opposed to what…?• 3 types:

LP 1 – ethno – examples discussLP 2 – social – examples discussLP 3 – techno, process (supply-side) examples?

• 3 variables:StatesubjectGroup (ethnic / multiple belongings / providers)

• Where is the state?

Galanter-Trujillo cont• Private DR providers – high-skilled professionals?• One-shotter v repeat player• Disputants from different cultures• Empowerment (values: participation, consensus)• Private and confidential procedures• Network of comprehensive justice centers? – to

each problem, one DR option – parties required to participate

• What do you make of the example of Pequots?• Do you know any relevant examples?• critique

Plurality and pluralism• How to define legal pluralism? More than one law in one

society? - implications• What is law? – “institutional normative order” (MacCormick),

custom v customary law, principles and authority• Plurality of norm systems and plurality of DR systems –

competing v coordinated / plurality v pluralism / monism pluralism v dualism;

• context of LP in Europe: history, colonial, postcolonial, the state and the supranational, infranational - the issue of constitutional pluralism - Sources of plurality in contemporary societies e.g. Cultural, religious, ethnic, social plurality and law - Is plurality the “normal” state of affairs?

• Multicultural societies v multiculturalism; some models: integration by accommodation, integration by assimilation, civic multiculturalism, see Tariq Modood Guardian 7-02-2011

Howes: “Culture in the domains of law” (Law in the Domains of culture, Sarat Kearns 1998)

• Cross-cultural jurisprudence (multicultural J). Culture in the courts and in legal reasoning, evidence, etc, see also Foblets, Shah,

• Cultural defense; formal cultural defense (Renteln)http://www.newzimbabwe.com/news-4421-

Lorraine%20Mbulawa%20the%20law%20and%20spirits/news.aspx

• The maximum accommodation principle: dress, treatment of animals, honor killings – moderate v radical relativism? Accommodation and Canada, Bouchard-Taylor Commission, Management of diversity; cultural diversity

From evolutionary models to sensitivity toward distinctness to reflexivity• Limit: physical integrity, universal values?• Weak legal pluralism• Culture and iconography

Normative approaches to LP at the supra- and international sphere (Mireille Delmas Marty, The

Imaginative Forces of Law)• Ethical internationalization (universalism) postulates active state support

whereas economic globalization (market-driven society) results in state inaction and inequality; international norms are being negotiated by governments, transnational norms are being conceived of and applied by the actors themselves and supranational norms are being monitored by judicial or quasi-judicial bodies 2 alleys for research and action:

1. A pluralist internazionalization which incorporates systemic diversity, looking for a common grammar that will enable systems to either be rendered compatible (harmonized) or truly fused (hybridized), “our objective must be to shape the plurality of systems into an “ordered pluralism”

2. Make indeterminacy, fuzziness and discontinuity a component of legal reasoning and legal thinking e.g. margin of appreciation, mutual recognition, subsidiarity, discontinuity of norms, of power, of values (law’s relativism v universalism of reason) where crimes and risks become global the responses must be global and cannot be left to national law alone. Universal law is now becoming normative, is reason becoming relative?

3. from pluralism to global trends

• Disintegration of tradition; Weber: modern economic life has destroyed those other associations which used to be the bearers of law and thus of legal guarantees (of legal enforcement and protection of property). This has been the result of the development of the market which requires a LS calculable according to rational rules

• But is this correct even for Western economies? Power and trust behind all legal phenomena? There is a social organisation of distrust to create legal certainty (Shapiro) but institutional trust as a prerequisite for stable Democracies (Offe)

• Historical waves of globalisation influencing legal culture: Roman Law, Gothic-invasions, Bologna and the rediscovery, Renaissance and nation-states, Code Napoleon, BGB, Constitutionalism-HR-rule of law, Trade and Law and the new lex mercatoria, Fight against terrorism and punitive trends (Garland’s Culture of Control)

• Each wave comes with new forms of production, new social structures, new technologies – globalisation trend, not completely new, but perhaps faster – how legal cultures interact?

Understanding a foreign culture – a frame of mind

• What are we comparing? What is larger, Legal culture , law or the Legal system? (Friedman) Cotterrell sees LC as the general environment the law, ideas, behaviours, attitudes BUT for Blankenburg, there is no LC outside the institutions.

• Getting rid of our preconceptions; an intellectual approach but also an attitude. From sensitivity to other cultures to reflixivity of one’s own. But our own culture is marked by hybridity and creolization (Sally Engle Merry)

• The internal point of view – H.L.A. Hart vs going native?• Very complex relation between viewer and viewed• Learning a second language : at what level Nelken: there is much to be

gained by inserting an investigation of legal consciousness into the larger framework of inquiries into LC

• Risk that the foreign observer recognizes normative orders as functionally equivalent to what they know from their own LS; risk of overemphasizing the transplant? or the distinctive.

Kahn-Freund, Uses and Misuses of Comparative Law (as instrumental)

• Not as a tool of research or educ but reform• The debate between Watson (transplants anywhere, little innovation) and

Legrand (transplants impossible)• Fact: foreign influences, law-makers looking abroad,reacting to social

change or provoking it • Uses: unification of law globally, e.g. EC• Transplants to bring about social change• Montesquieu quote and list of factors, political factors gaining importance

to explain resistance v convergence factors, East v West, separation of P, majoritarian v constitutional democracy, role of organized interests in the making/maintenance of legal institutions

• 3 examples, marriage (and family) law, law of procedure and of evidence, industrial relations esp collective bargaining, closed shop, TTUU, strikes (importance of traditions, or path-dependency) v contract and commercial law (see also discussion in Twining, p, 29, the metaphor of a transplant of a kidney or a carburator)

Twining Diffusion of Law

• What is the author trying to do? A new socio-legal field?• Legal systems and legal traditions have interacted throughout

history. Indeed isolation has been quite exceptional, but is this overstated? Some strategies have emphasized isolation; others hybridity (Japan, Turkey), others are forced into isolation

• The international dimension of legal culture constitutes one of the contexts in which legal change occurs; two major trends– Landmarks in the study of diffusion: reception studies;

colonization importation and imposition (legal pluralism; L&D), voluntary receptions; transplant thesis, law reform in Eur integration, structural adjustment programs in developing C; reconstruction in countires in transition, post-conflict reconstruction

– More detailed studies of the pathways and processes of diffusion of particular products, techniques or ideas

Twining cont• A map to identify the difficulties• A reasonable cosmopolitan discipline of law goes beyond municipal

law of nation-states and PIL to reach supra-state, religious law, non-state law, soft law

• State legal pluralism ? p. 12, normative and legal pluralism? p.14• Definition of legal order in note 22• P. 21-22 e) any 2legal” phenomena or ideas can be the objects of

diffusion…or even principles• The Red Book (ft 36)• (f) Did you bring your law with you as students• Ft 40: Discuss Glenn: does recption imply adherence?• (i) Latour: “no transportation without transformation”, mediation by

local actors – Frank Lloyd Wright’s house• (l) p. 31-32; audit culture in law reform v transitional justice studies:

“the assumptions underlying these measures tend to be technocratic, formalist and strongly instrumentalist, paying scant regard to culture, context, and tradition” (V Taylor and T Halliday)

TRANSPLANTS- imports and exports• Challenge of transnational developments and politics of global

capitalism; who sets the trend, who exports what in legal thinking• What is the appropriate unit of legal culture? The nation-state; a

local jurisdiction? The families of law?• suggestion-proposal: use transplant for concrete specific norms,

procedures or institutions, use “diffusion” for the broader interactions between laws (legal cultures)

• Officials use foreign law to bring about change, not to preserve existing society (instrumental use of borrowed institutions)

• Colonialism and imposed legal transfers; also the case in occupation or in conditioned loans for projects of trade, aid from World financial institutions (corporate governance, audit culture?)

• Industrial property, antitrust, But transplants vs path dependency• Is convergence inevitable? Friedman: we are moving towards a

global legal culture based around individualism, equality and Human Rights

• The EU as a laboratory of legal transplants in all directions, esp by means of directives, but even more so for diffusion of laws and its contribution to creating a new European legal culture

4. Beyond the national legal cultures – transnational legal phenomena TRNL

• General discussion re break up of nation-state model of legal culture, to what extent is it overstated?

• Is the international level ultimately the same as the state (municipal) level?

• Definition of law again: soft forms, normative and cognitive expectations

• What are the phenomena going beyond, above, below, besides, between states

Volkmar Gessner, Globalization of enabling law

• Global Legal Culture? – in what sense? World society -Western Model? Is the EU really a test case of emerging supra-state LC?

• Embeddedness everywhere? Granovetter 1985 examples. Compare:– State law enbedded in a multitude of national LCs as are all other formal or

informal normative systems v harmonisation efforts through international agreements and integrative influences of regionalization and globalization processes

– Non-legal rules became semi-autonomous due to the fact that they were embedded in a legal system which was either tolerating or supressing them (LP2) v transformation of the state, from government to governance and legal pluralist approaches

– Global business transactions embedded in a common culture shaped by economic rationality, English, contracts, arbitration,

– From a socio-legal perspective economic behaviour is embedded in social structures and social relations

– Embeddedness of personal relations as an overlay in economic transactions

v impersonal trust - reputation, principal/agent,

Gessner-2 a theory of everything – Globalisation, LC of lex mercatoria, social systems of production

• How are Global business transactions regulated? A common culture shaped by 5 factors

• Legal cultures differ on how Legal certainty, exchanges are secured 4 variables: legal provisions, merchant’s rules, contracts by law firms, relational contracts based on trust –guanxi?

• Modes of coordination: horizontal (interest) v vertical (obligations) and regulatory system – networks and associations

• 2 functions of law: regulating v enabling (enabling infrastructures, importance of civil cases, but also by IIOO like UNCITRAL, WB, IMF, EU) alternatives to enabling infrastructures: lex mercatoria or self-regulation by law firms, universalistic rules like reciprocity or generalized morality???

• 2 variables when comp state v private structures enabling cross-border economic change:Trust and power,(Multinationals); no law?

• A high level of trust among competing economic actors / existence of a communitarian structure are necessary for the emergence of succesful and felxible social systems of production

• Does the economy regulate itself, is there an invisible hand; where is the law? Law at the background?

• Impersonal trust, a complex social achievement absent in most parts of the W, constructed in the level of societies, law not a condition

Lex mercatoria (see lexmercatoria.org)• Origin in Northern Italy in late Middle Ages, decline in the course of nation-building

and codification. Special development in the London Commercial Court• The context is autonomy of actors in international trade compared with state

intervention in other areas. New quest for certainty; solutions sought in hybrid mix of state regulation, international regulation and self-regulation

• Incoterms, Uniform rules, IChamber C, Hague Rules, Unidroit; UN organizations have stepped in with International Conventions (e.g. sale of goods)

• Autonomous rules; special drafting of contracts, practice of international law firms in standardising contracts and in negotiation often taking account of cultural differences

• Arbitration and problems of enforcement• Globalisation phenomenon. This responds to a phenomenon of enabling law

(Gessner) through unification of contract law, insolvency law, property law, tort law, company law or civil procedure. Differences in regulation and divergencies in state laws are supposed to reduce calculability and increase risk

• There is a fight between supreme courts and arbitration courts and legal theory, whilst economic actors try to escape from state law, first avoiding courts in favor of arbitration and then shopping for the best jurisdiction

• Global business is predominantly based either on power or personal trust• The Study Group on a European Civil Code is a network of academics, from across

the EU, conducting comparative law research in private law in the various legal jurisdictions of the Member States. It aims to produce a codified set of Principles of European Law for the law of obligations and core aspects of the law of property.

Cotterrell, spectres of TransNationalism

• Theoretical implications – rethink law and society, even legal theory• P. 3. Western lawyers’ typical modern view of law in general: state-

centered, monistic, law as autonomous normative order and science; internal/external; impacts on society. V Ehrlich’s subversive ways

• The plurality of legal pluralism LP: intra-state LP or multiculturalism, State LP or polycentricity, transnational LP, interstate LP (what is this? Extraterritoriality? Export? Transplants? a regulatory continuum or spectrum? Regulatory conversations bwn intersecting legitimacy communities; a normative network of interlegality

• The legal future is one of increasing displacement of traditional state-centeres, positivist legal understandings can legal sociology explain and interpret this changing regulatory terrain? Disturbing spectre : good empirical research but the past – law and state- weighing too much to renew itself in the face of legal TRNL

• Discuss the general hypotheses about states subject to TRNL influences

Spectres cont, law, society and theory in flux

• Legal instrumentalism: law is the state’s key regulatory instrument; but the ‘law’ side of ‘law and society’ is in flux. Law regulatory continuum

• convergence thinking - So too is the ‘society’ side –v, Fukuyama’s end of history, risk of thinking one’s is the truly convergent vision, one-size fits all; society the social goes beyond politically organised society of natiostates

• Interest analysis Pound - law has reduced liberalism to ‘rule-based individualism’ and ‘interest politicsCulture a great diversity of networks of social relations – kind of useful tools Simmel p. 14, Gurvitch, Weber, Scott Veitch, p. 15-6,’

• Theory also in flux, no static views, ideas of LP; Rawls v Hardt and Negri’s Empire v Schmitt, nomos of the Earth – ratio and voluntas

• Wishful thinking in Cotterrell’s constructive subversion? Is this useful?

What alternatives to Legal culture? D. Nelken, Rethinking Legal Culture

• Many studies can be relevant to legal culture even without using this term. Many studies use the term but contribute little.

• Living Law (Ehrlich) - Law in Action• Legal Tradition / Legal Ideology / Legal fields / Legal Styles

/ Path dependency• Internal LC: legal mentalities / epistemes, formants• Even more provocative: autopoiesis and systems theory,

Law and Society, Sociologies of Law?• Elements: legal system, legal process, legal institutions,

actors, rules, procedures, practices with reference to their philosophical, historical or social context

Nelken – Italian delays; injuries and compensation in N Thailand; LC can help make comparisons of LSs more sociologically meaningful – cultural and

structural factors interact

• Structure-infrastructure• Facts• Number of lawyers• Role of lawyers• Number of courts/judges• Methods of career access• Litigation rates• Prison rates• …

• Culture

• Ideas, values

• Aspirations, principles

• Mentalities, consciousness

• Beliefs

• Attitudes, practices,

• habit

5. Round up Legal Culture

• Friedman: LC; what people (Int/Ext) think about law, lawyers, and the legal order, it means ideas, attitudes, opinions and expectations with regard to the LS” The term LC tends to be applied both to elements (variables) within a society and to whole societies (aggregates) it ends up as an explanation (method rather than object of enquiry), LC as the cause and the result,, the effect of our descriptions

• Demand for law not LC but legal consciousness! P. 217• We cannot take for granted that rules and institutions are

transplantable (using a pattern of law outside the environment of its origin) Knowledge of the foreign law is not enough, also of its social, and above all its political context

• Legal culture and pluralism; complex relationship – a pluralistic legal culture? Reasonable accommodation bwn relativism and assimilation

• Internally within one state/nation• internationally