4 Comparative legal research and legal culture

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LS12CH03-Nelken ARI 26 September 2016 13:22
Comparative Legal Research
and Legal Culture: Facts,
Approaches, and Values
David Nelken
The Dickson Poon School of Law, King’s College, University of London, London WC2R 2LS,
United Kingdom; email: david.nelken@kcl.ac.uk
Annu. Rev. Law Soc. Sci. 2016. 12:45–62
First published online as a Review in Advance on
August 17, 2016
The Annual Review of Law and Social Science is
online at lawsocsci.annualreviews.org
This article’s doi:
10.1146/annurev-lawsocsci-110615-084950
Copyright c© 2016 by Annual Reviews.
All rights reserved
Keywords
legal culture, law and culture, legal consciousness, comparative law,
comparative sociology of law, South African legal culture
Abstract
This article seeks to provide an overview of how the controversial concept
of legal culture has been used so as to clarify its potential role in further
developing comparative studies of law in society. It shows that the term is
currently given a variety of meanings, ranging from treating it as a variable
that explains the turn to law, to exploring law as culture in different settings.
As a way of moving forward, attention should be given to what is assumed or
asserted by given authors with respect to three key issues: the kind of facts
that are thought to make up legal culture, the chosen approach within which
the concept is deployed, and the normative aspects of the enquiry. It ends
by revisiting Chanock’s The Making of South African Legal Culture so as to
show how this framework can help reveal the theoretical underpinnings and
contribution of a leading case study.
45
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http://www.annualreviews.org/doi/full/10.1146/annurev-lawsocsci-110615-084950
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INTRODUCTION
What is the term legal culture good for? What part does it play—and what part could it play in
comparative sociolegal research? There is little agreement on the answer to these questions. Some,
for example, see it as the key to explaining how far legal transfers from one society to another
are likely to be successful, whereas others reject it precisely because of its inability to help in this
endeavor.1 But more is at stake than its role in any one policy exercise. As with many social science
concepts, this one too is being used in a variety of ways. It hints at, without always bringing fully
into focus, a range of issues concerning law and culture concerned with culture in law or law in
culture (comprising both high culture and popular culture), as well as law as culture (see, e.g.,
Cotterrell 2004, Kahn 2000, Mautner 2011b, Mezey 2003).
Writers who use the term envisage culture both as something that law already reflects and
expresses and as something that law needs to address. They treat it as relevant to enquiries into
what, if anything, gives coherence to law-related norms and practices shared by groups and or-
ganizations. But it is also found in discussions of the way the boundaries of what counts as legal
argument are produced and patrolled. Most importantly, for present purposes, the concept of legal
culture is often used to characterize differences between legal systems (such as those reflected in
their trends in litigation or prisons rates), and it is recommended for use when explaining why
people (and societies) differ in their use of law. Finally, it also finds a place in accounts of pluralist
interactions between different kinds of law, and efforts to understand the way that international
or hybrid courts overcome the contrasting cultures that judges from different jurisdictions bring
with them.
Arguably, such a variety of uses would at least suggest the need for some such concept. But
given that there are a host of competing and overlapping terms available to comparative sociolegal
scholars, why persist with this one?2 The question is all the more pressing given that many critics
have argued, as this review shows, that the term itself is a particularly problematic one, and is
often employed in misleading or unhelpful ways.3 This review argues that progress can be made
if we ask three questions about any use of the term: What sorts of facts are being pointed to?
How does the use of the concept form part of different approaches to studying law in society?
In what ways does a given study of legal culture involve normative enquiry? It concludes with an
extended revisiting of a study of South African legal culture designed to show the advantages of
giving attention to these questions in writing and reading case studies of legal culture.
LEGAL CULTURE AS FACT
Scholars who compare law in different societies and settings contrast a variety of topics, elements,
and structures. But what sort of facts count as evidence of these differences? Are we speaking of atti-
tudes or also of behavior? How does legal culture relate to legal rules, institutions, social structure,
1Compare World Bank 2001 and Gillespie 2008.
2It certainly represents an advance on the empty (but still surprisingly common) term legal system, which lacks any theoretical
pretensions. But genuinely alternative or overlapping concepts (depending on the purpose in hand) include “law in action”
(Bruinsma & Blankenburg 2000), a term that, in response to criticism, Bruinsma chose to replace legal culture as used in
the title of earlier editions of his book, “legal discourse” (Gillespie 2008); “legal ideology” (Cotterrell 1997); “communities”
(Cotterrell 1998); and, most obviously, “legal consciousness” (Silbey 2005). Other possibilities include “legal traditions”
(Glenn 2007), “legal mentalities” and “legal styles” (Merryman & Perez-Perdomo 2007), “legal complex” (Halliday et al.
2007, 2012), “legal epistemes” (Legrand 1997), “legal formants” (Sacco 1991), “path-dependency” (Mahoney 2000, Pierson
2000), “regulatory styles” (Haines 2005), and even “legal autopoiesis” (Teubner 1998).
3Even Lawrence Friedman, who introduced the term in the 1970s (Friedman 1975, pp. 193–268), now says that he is not sure
he would want to reinvent it (Friedman 2006).
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and culture more generally? Can it be plausibly separated from political, economic, or religious
culture? Does culture designate what an individual or group holds most precious—or, rather, their
deepest unarticulated assumptions? Should we reserve the term for irrational, or value-based, ac-
tion as opposed to purely instrumental social action? Above all, perhaps, what sort and degree of
coherence between the elements of a given unit are being proposed when we speak of culture?
A frequent criticism of the term is that it confuses the part with the whole. Friedman (1975,
p. 76), who introduced the term legal culture as a “term of art,” used it both to designate the
“variable” that, in his words, “sets the legal system in motion,” and also the larger whole that is
made up of social variables, as when speaking of “American legal culture” or (even) “modern legal
culture” (Cotterrell 1997). In response to a challenge on this point, Friedman answered that legal
culture was not itself a fact but a category in which several (measurable) facts can be included.
These encompass the attitudes (and behavior) of the legal officials and others who animate what
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Cambridge Univ. Press
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Renteln AD. 2004. The Cultural Defense. Oxford: Oxford Univ. Press
Rosen L. 2008. Law as Culture. Princeton, NJ: Princeton Univ. Press
Sacco R. 1991. Legal formants: a dynamic approach to comparative law. Am. J. Comp. Law 39:1–34
Sassen S. 2006. Territory, Authority, Rights: From Medieval to Global Assemblages. Princeton, NJ: Princeton
Univ. Press
Sezgin Y. 2012. The role of alternative legalities in bringing about socio-legal change in religious systems.
See Nelken 2012a, pp. 344–62
Shah P. 2005. Legal Pluralism in Conflict. London: Glasshouse
Shamir J. 2015. While in Rome, do as Romans do? Persistence of legal culture: the case of immigrants from
the former Soviet Union to Israel. In Studies in Law, Politics, and Society, Vol. 66, ed. A Sarat, pp. 115–77.
Bingley, UK: Emerald
Shapo MS. 2003. Tort Law and Culture. Durham, NC: Carolina Acad.
Siems M. 2014. Comparative Law. Cambridge, UK: Cambridge Univ. Press
Silbey S. 2005. After legal consciousness. Annu. Rev. Law Soc. Sci. 1:323–68
Silbey S. 2010. Legal culture and cultures of legality. In Handbook of Cultural Sociology, ed. JR Hall, L Grindstaff,
M Cheng-Loo, pp. 470–79. London: Routledge
Silbey S. 2012. J. Locke, op. cit.: invocations of law on snowy streets. See Nelken 2012a, pp. 120–52
Smulovitz C. 2010. Judicialization in Argentina: legal culture or opportunities and support struc-
tures. In Cultures of Legality: Judicialization and Political Activism in Latin America, ed. J Couso,
A Huneeus, R Sieder, pp. 234–53. Cambridge, UK: Cambridge Univ. Press
Steinmetz W. 2000. Private Law and Social Inequality in the Industrial Age: Comparing Legal Cultures in Britain,
France, Germany, and the United States. Oxford: Oxford Univ. Press
Tanase T. 2010. Community and the Law: A Critical Reassessment of American Liberalism and Japanese Modernity.
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62 Nelken
http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/LegalCultureBrief.pdf
http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/LegalCultureBrief.pdfas well as the attitudes toward the law of individuals, groups,
and organizations belonging to what he calls “external legal culture.” It is the demands of these
latter groups, and whether or not they choose to invoke the law, that shape its direction and
content, rather than the internal evolution of legal tradition (Friedman 1997). Friedman’s focus
on the attitudes of individuals as the key facts of legal culture has been followed up by many of
those who carry out domestic or international surveys, though their preferred term is more often
“legal consciousness” (Gibson & Caldeira 1996, Grodeland & Miller 2015). But it has also been
criticized for getting the relationship between culture and the individual the wrong way round
(Silbey 2005).
When we start at this other end of the continuum (using what Friedman has called the anthro-
pological sense of the term), legal culture is treated as a unifying, holistic concept, a widely shared
way of thinking, talking, and acting that organizes social life in particular times and places. In a
paper trying to make sense of Italian court delays, I operationalized such a broader take as follows:
Legal culture, in its most general sense, is one way of describing relatively stable patterns of legally
oriented social behavior and attitudes. The identifying elements of legal culture range from facts about
institutions such as the number and role of lawyers or the ways judges are appointed and controlled, to
various forms of behavior such as litigation or prison rates, and, at the other extreme, more nebulous
aspects of ideas, values, aspirations and mentalities. Like culture itself, legal culture is about who we
are not just what we do. (Nelken 2004, p. 1; see also Nelken 1995; 1997a; 2006; 2007a,b; 2012b)
The problem is that, if legal culture includes everything, there would seem to be nothing left for
it to explain. Although this objection needs a response (see the next section), some leading authors
overreact by breaking up what is meant by legal culture into several different topics. Sally Merry
suggests that we can distinguish four “dimensions” of legal culture. The first is “the practices and
ideologies within the legal system, everyday ways of getting things done, shared assumptions about
good and bad clients, and other internal rules and practices.” The second is “the public’s attitude
toward the law. Whether the legal system is seen as a source of corruption and ethnic preference,
for example.” Thirdly, she argues, “there is the question of legal mobilisation, which refers to how
readily people define their problems in legal terms, when they turn to the law for help.” Finally,
“a fourth dimension is legal consciousness, the extent to which an individual sees him or herself
as embedded in the law and entitled to its protections” (Merry 2012, pp. 56–57).4
4Similarly, Silbey (2010) distinguishes legal ideology; legal consciousness; legalities, cultures of legality, and counter-law; and
the structure of legality.
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But even Merry concedes that “each of these categories overlaps and influences the others”
(Merry 2012, p. 57). And, for most comparative sociolegal scholars, the value of the term lies
exactly in pointing to the way culture itself embodies and creates these connections. The term
legal culture, Field tells us, offers an entry point into the “distinctive cultural ‘logics’ at work,
distinct ways of seeing . . . into which the researcher must struggle to enter” (Field 2012, p. 324).
A further problem facing those carrying out comparative research is how far they can (continue
to) treat nation states as their units of legal culture. Works with titles like Dutch Legal Culture,
(Blankenburg & Bruinsma 1991), The Japanese Way of Justice ( Johnson 1996), or French Criminal
Justice (Hodgson 2005) presuppose the existence of distinctive national cultures.5 Differences
between legal cultures are often thought to correspond roughly to political boundaries (see, e.g.,
Friedman & Perez-Perdomo 2003, Gessner et al. 1996, Kurkchiyan 2011). Because of the use of
law in nationalizing projects, there may even be more uniformity in a nation’s legal culture than in
other aspects of its culture. There is also some empirical evidence of psychological differences in
national traits in the way people relate to each other (Bierbrauer 1994, Hofstede 1980, Verstappen
2014). Such historically conditioned sensibilities may persist over quite long periods.
Contrasts between national units can involve approaches to law, regulation, administration, or
dispute resolution; the extent to which law is party or state directed (bottom-up or top-down); the
role and importance of the judiciary; or the nature of legal education and legal training. They may
concern ideas of what is meant by law (and what law is for), where and how it is to be found, types
of legal reasoning, the role of case law and precedent, or general clauses as compared with detailed
drafting. There may also be important differences in the degree to which given controversies are
subject to law (rather than other forms of ordering), the role of other expertise, and the part played
by alternatives to law.
Legal culture can also be revealed by studying the specificities of branches of law, such as
criminal law, family law, contract law, property law, copyright law, or bankruptcy law. Tort law,
for example, has been shown to be a fruitful source of cultural symbols—as well as an index of
social tensions.6 Yet even such apparently unconnected branches of law within a given society
can manifest remarkable levels of cultural similarity (Whitman 2005). Those engaged in debates
over why some countries have higher rates of incarceration than others (e.g., the United States
as compared at the other extreme with Japan) are unwise to ignore, as they tend to do, related
differences in the extent to which the societies concerned resort to civil litigation.
However, in many respects, the boundaries of legal culture do not coincide with the nation
state. The ideas of family lawyers in one country may have more in common with family lawyers in
other jurisdictions and cultures than, say, copyright lawyers in the same country. The assumption
of a coherent national unit of legal culture is and always has been especially misleading in the
many places in the world characterized by political, social, and legal pluralism and competing
religious and/or culturally based normative orders. Legal systems have always been affected by
varied processes of borrowing, imitation, and imposition.7 But, increasingly, local legal cultures
are challenged by the effects of globalization (Garapon 1995). Even the legal culture of a nation
state as important as China is subject to a variety of external influences and pressures as it embraces
the demands of capitalist economics, trade agreements with the rest of world, and World Trade
Organization requirements. Preexisting norms that are local, informal, subjective, and relational
are challenged by the turn toward more formality and objectivity (Potter 2001). We also witness
5Though some authors see these as internally differentiated, as with Bell’s (2001) textbook called French Legal Cultures.
6Shapo (2003) provides a court-centered discussion, Engel & McCann (2009), a more wide-ranging one focusing on discourses.
7See Benton (2002) for a particularly subtle account of the spread of European law.
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the growth of so-called third cultures of international trade, communication networks, andother
transnational processes, as seen, for example, in lex mercatoria or cyber communities.
As this suggests, students of comparative legal culture must examine similarities and differences
in meanings and logics at different macro, mezzo, and micro levels, ranging from those of national
or supernational courts (Palmer 2015) to the culture of the local courthouse (Church 1982).
National judges and other legal actors can often decide whether or not to look to what happens
elsewhere for developing their own jurisprudence. But judges working in hybrid international
criminal courts, or those appointed to the European Court of Human Rights from different
jurisdictions, are obliged to try to find a way to create a shared legal culture. Surprisingly, they
largely succeed in doing so (Arold 2007, Nelken 2009).
We need to be careful, however, not to take claims about the decline of the nation state too far.
The rise of the transnational does not necessarily coincide with the decline of the national (Sassen
2006). Arguably, the European Union risks coming apart because of insufficient recognition of the
extent to which in some places law is treated as a fact, whereas in others it is seen as more of a coun-
terfactual ideal. As important, what is referred to as globalization usually represents the attempted
imposition of given legal culture on other societies—a globalized localism. Importing countries
may be offered both the Anglo-American model, whose prestige is spread by trade and the media,
and national European versions of the more intellectually impressive continental legal systems em-
bodied in ready-packaged codes. The Anglo-American model is characterized by its emphasis on
the link between law and the economy rather than law and the state. But it also spreads the ideology
of pragmatic legal instrumentalism, the very idea that law is something that does or should work.
If, for Friedman, legal culture involved studying attitudes (and behavior), recent work on legal
culture, following the interpretative turn, has shifted to analyzing the production and circulation
of discourses. Those who focus on law as culture seek to understand how facts adduced in legal
forums connect to the ways in which facts are constructed in everyday life as part of a culture’s way
of expressing its sense of the natural order of things (Geertz 1983). They trace the way science,
common sense, and legal reasoning depend on ideas of self, individualism, and the role of the
state, and show the development of the idea of fairness from that of a “just price” to that of the
“meeting of minds” (Rosen 2008, pp. 136, 178).
For other interpretative scholars, legal culture, like culture itself, is not a coherent, logical, and
autonomous system of symbols but a collection of resources that are deployed in the performance
of action. Even lay people can add new elements to the lived experience of law by constructing
intelligible and plausible claims to legal right out of discursive resources concerning ideas of labor,
property, notice, and community consent (Silbey 2012, pp. 128). Legal culture also plays a role
in constructing “imagined communities” or “invented traditions” whose purported uniformity,
coherence, or stability will often be no more than an ideological projection or rhetorical device
(Coombe 1998).
To sum up, with such a multiplicity of referents, including states, organizations, institutions,
groups, individuals, and attitudes, what is described as culture will not always mean the same
thing or operate in the same way (Cotterrell 1997). It is therefore important for scholars to make
clear what facts they are referring to when speaking about legal culture—and what gives them
their unity. In particular, different definitions of the facts of legal culture will reflect contrasting
understandings of what is meant by culture.
LEGAL CULTURE AS APPROACH
The term legal culture is also an approach to the study of law in society rather than simply an
object of enquiry (see, e.g., Nicholson 2008). It offers a way of looking beyond doctrinal and,
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more generally, court-centered ways of thinking, so as to bring together the “legal” and “social”
in investigating how law “works, and show how it relates to other social constructs such as trust,
justice, power, and group socio-legal identity” (Kurkchiyan 2012, p. 221). Perspectives as varied
as legal theory, legal history, organizational sociology, comparative politics, cultural psychology,
institutional economics, or semiotics may all reference the term (though naturally these disciplines
do not speak with one voice). Crucially, comparative law scholars increasingly argue that this ap-
proach can help substitute the old “legal families” approach, which placed exaggerated importance
on the historical derivation of legal rules (Husa 2015, Siems 2014).
To respond to the accusation that some broad definitions of legal culture leave nothing to
explain, it is crucial to distinguish approaches that treat legal culture as a variable from those that
seek to grasp the nuances of its meanings.8 Friedman’s starting point that legal culture explains (or
names?) differences in the extent to which people in different societies turn to the law (Friedman
1997) continues to inspire other scholars. Interesting recent work has applied this idea to explain
the degree of integration of migrants into their new legal culture of arrival (Kubal 2012). Recent
Polish immigrants to the United Kingdom at first often put law on a pedestal as an idealistic
aspiration rather than as something to be followed in everyday life. When faced with the choice
to comply with the full panoply of legal requirements or remain in the black or gray economy,
the latter felt like the safe and familiar option. Interestingly, however, such attitudes changed over
time (Kubal 2012, p. 207; see also Shamir 2015).
For Friedman, legal culture also points to the importance of social and technological devel-
opments and the social pressures they build up in bringing about legal change. His lead here has
been followed by historical studies that examine how legal culture shapes the role of the legislator
and the courts, for example, in producing unintended outcomes of divorce law reform (DiFonzo
1997). The term has also been employed in comparative studies showing how courts constructed
private law remedies in Britain, France, Germany, and the United States in the face of rapid in-
dustrial and social transformation (Steinmetz 2000), or accounting for differences in nation-state
responses to mass toxic torts (Boggio 2003).
For some scholars, Friedman’s approach downplays the importance of the institutions that
he calls internal legal culture. Blankenburg put forward an important critique using a case
study designed to explain why Germany made so much more use of the courts than those in
the contiguous areas of the Netherlands, despite them being allegedly so similar socially and
economically. Comparing the range of formal and informal dispute mechanisms in both coun-
tries, he argued that rates of litigation were better explained by institutional and what he called
“infrastructural” differences on the supply side of law, rather than by differences in the de-
mand for law deriving from the folk culture of each country (Blankenburg 1997; but see also
Hertogh 2012).9
8Such differences also have implications for methods used to gather evidence of legal culture. It is one thing to ask people
for their attitudes toward legal institutions, something else to offer interpretative accounts of the logic of cultural differences
that few of the members of the culture themselves may be able to articulate. See, for example, Whitman’s (2000, 2003, 2004b,
2007) rich comparativeanalyses of deep-lying cultural differences in approaches to privacy, mercy, or dignity, or the rights of
producers and consumers. Sometimes, too, people are unaware of the truth about their legal culture because this is deliberately
misrepresented by politicians and the media (Haltom & McCaan 2004).
9There was a similar, if often oversimplified, long-running debate over the supposed role of culture in explaining low rates
of litigation in Japan. Was this better explained by alleged cultural resistance to exacerbating conflict (Miyazawa 1987), or
instead by deliberate government-created limitations on the opportunities to go to court (see, e.g., Haley 1978, Ramseyer &
Nakazato 1999, Upham 1987, and Vanoverbeke et al. 2014)? But, whereas the Japanese debate contrasts the role of institutions
with (folk) culture, Blankenburg prefers to argue that institutional structures and (what he described as) infrastructures should
themselves be called legal culture.
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More recently (though without citing him), Smulovitz reached similar conclusions about the
relative importance of institutions and the supply side of legal culture when it came to explaining
sociolegal change in Argentina. She argued that the recent increasing turn to formal institutions
there was related to growing judicial independence and the experience and confidence of lawyers.
By contrast, survey evidence indicated that citizens’ ideas about law played a minor role in this
process (Smulovitz 2010, p. 251). It is not obvious, however, that Blankenburg’s (or Smulovitz’s)
contrast between supply and demand corresponds to the way Friedman uses his categories of
internal and external legal culture. And any effort to explain why supply-side institutions take the
form they do would also need to bring the demand side back into the picture (Nelken 1997b).
What then of the specific criticism that efforts to use legal culture as an explanation risk tautol-
ogy? Kenney (1996) argued that, like the concept of “political culture,” (which may have influenced
Friedman’s choice of terminology), it is “everything and nothing simultaneously.” For Webber
(2004, p. 28), too, “legal culture risks being a superficially attractive but ultimately obfuscating
concept, insisting upon interdependency but then cloaking that interdependency under the rubric
of a single concept, doing nothing to tease out the specific relations of cause and effect within any
social field.” If we were to ask why Italy suffers such long court delays, it would indeed be circular
to attribute this to legal culture if delay was itself one of its constituent features (Nelken 2004).
How can this danger be avoided?
One solution to the risk of tautology is to use what we are calling legal culture less as itself an
explanation and more as something that itself needs to be explained. Thus, we can set out to explain
how Italian court delays are linked to a host of specific legal, social, economic, and political features
of the society, as well as to the efforts to remedy them through appeals to the European Court of
Human Rights (Nelken 2004). These sort of enquiries into comparative legal culture explore such
questions as why the US criminal justice system is so harsh (Whitman 2003), why there is so much
difference between the effectiveness of the higher courts in India and the inadequate performance of
those lower down (Galanter 2009), and why reckless driving is so common in Iran (Banakar 2015).
It can be especially productive to start from paradoxical or otherwise puzzling similarities or
differences. Why do the United Kingdom and Denmark complain most about the imposition of
EU law but then turn out to be the countries that have the best records of obedience (Nelken
2004)? If Japan as a society tends to make relatively low use of law to resolve conflicts, why does law
play such an important role in cases involving compensation for contaminated blood, the banning
of smoking in public, or the resolution of trade disputes over tuna catches (Feldman 1997; 2001;
2006a,b)? Given the similar legal and political systems that shaped them, why are prosecutors so
influential in Russia but not in Poland (Polak & Nelken 2010)? Why is Italy in the lead among
states trying to assist victims of human trafficking when it is relatively inhospitable to the victim
support movement in criminal justice discourse (Nelken 2011)? The answer to all these puzzles
lies in learning more about what is special about the relationship of law and society in the place in
question and what explains its persistence.
In principle, we do not have to choose between using the term as either part of the explanans
or part of the explanandum—we just need to be clear which we are doing. We could, for example,
investigate either the causes of what we call American legal culture or the way it influences other
societies. Likewise, even if not well framed as a cause, legal culture could also still be a reason for
acting. The desire to defend what is alleged to be its distinctive culture helps explain the workings
of legal institutions in places as different as Japan and Norway. In the 1980s, the appearance
of league tables showing Finland to have relatively high levels of incarceration prompted the
governing classes there to take action to reduce the imprisonment rate so as to lead it to be
more similar to (other) Scandinavian countries (Lappi-Seppälä 2007). Once achieved, the low
incarceration rate then became a badge of pride.
www.annualreviews.org • Legal Research and Legal Culture 51
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But must the search for understanding depend on identifying causal variables?10 Those who
insist that we treat the cultural domain as a resource, a practice, and a dimension of institutions,
but not a residual cause (Merry 2012), admit that it then becomes difficult to know how and when
culture will be drawn on situationally.11 Other more interpretative approaches appear still less
interested in using the term legal culture in causal explanations. They seek rather to show, by
means of “thick descriptions,” how law “constitutes” social practices and contributes, in Geertz’s
(1983, p. 218) terms, “to a definition of a style of social existence.” Rosen (2008, p. 3), following
in his footsteps, advises us to study “law as a discourse that shapes consciousness by creating the
categories through which the social world is made meaningful.” Such hermeneutic investigations
reveal how given aspects of a society’s law-related practices resonate with other features within
and outside the conventional boundaries of the legal system. Telling differences may be found in
the local meanings of terms such as “discretion” (Nelken 2013) or “community” (Zedner 1995).
Changes arise in the meaning of “contract” in a society where the individual is seen as necessarily
embodied in wider relationships (Winn 1994). It is not without significance that the Japanese
ideogram for the new concept of “rights” came to settle on a sign associated with “self-interest”
rather than morality (Feldman 1997).
In comparing dispute-processing institutions, some scholars of civil procedure tell us that
“processes of legal decision making share the logic by which the culture as a whole is put together,”
arguing that “the metaphysics, values, symbols, and social hierarchy of any collectivity will set the
bounds within which it organizes its dispute-handling institutions” (Chase 2007, p. 5). They
recognize, however, that it is important not to exaggerate the isomorphism between legal culture
and its social environment. Law, they tell us, hasa discursive life of its own; dispute institutions “do
not move in lock step with even deeply held values,” and “cultures, when contested or out of step,
could with equal plausibility explain the development of completely different dispute institutions”
(Chase 2007, p. 92, emphasis added). Explanation here has little to offer in terms of providing
testable predictions. Students of legal culture must be aware of the deep methodological divides
that traverse the social sciences. They are unlikely to be able to resolve them—but they must make
clear what claims they are making.
LEGAL CULTURE AS VALUE
There are a variety of ways in which normative questions enter either explicitly or implicitly
into comparative enquiries about legal culture. Most obviously the aim may be openly to offer
evaluations, for example, of individualistic as compared with communitarian legal cultures (Tanase
2010). More prosaically, those who draw inspiration from the law and economics approach note
that differences in legal culture have market consequences. As Ogus (2011, p. 163) puts it, “To
the extent that they have monopolistic power, lawyers can exploit the key features of legal culture
to extract rents: the law used can be more formalistic, more complex and more technical than is
optimal.” Whether differences in legal cultures should be preserved as far as possible or rather
normalized or harmonized away is a matter of keen debate. Writing about what he calls “the
10Kurkchiyan (2009), for example, offered an original observation study of the way existing patterns of legal culture in Russia
thwarted the introduction of an informal dispute mechanism copied from England that was intended to deal with complaints of
defamation in the media. But, more recently, she has argued that legal culture “is the product of a convoluted interplay between
historical legacy, institutional performance and popular attitudes” (Kurkchiyan 2012, p. 250). “(S)uch a broad picture,” for
her, “does not allow causal analysis, but it does have the potential to explain how law is embedded in the social texture and
how it relates to other concepts such as justice, trust and the rule of law.”
11This is also acknowledged in efforts to predict changes in the interpretative frameworks used by the courts (Couso et al.
2010).
52 Nelken
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politics of legal cultures,” Banakar (2008, p. 38) asks how far “acceptance or rejection of the legal
culture of the ‘other’ is a function of an assessment of the actual compatibility of the cultures in
question, that they can or cannot coexist in the same social space, and to what extent is it the
outcome of legal ideologies and transient socio-political interests?”
Some writers object to the use of any expressions that include the term culture. Cultures are
too easily thought of as “super organic,” or “substantive, bounded entities,” instead of as “shreds
and patches remaking themselves” (Glenn 2004). They are prone to be understood as essential-
ist, overdetermining, and xenophobic, placing too much stress on the past governing the present
(Kuper 1999). Likewise, reference to (legal) culture can easily justify fatalism in the face of possible
change, as when it was alleged that the new East and Central European accession countries to the
European Union would be unable to escape the cultural patterns inherited from their communist
past (Krygier 1996–1997). Similarly, many human rights projects see their task as overcoming
what they take to be excessive deference to harmful cultural practices regarding women, children,
or minorities. But the concept is not bound to carry these connotations. The German word kultur
emerged as a defensive term to be used in romantic opposition to the French universalizing idea
of civilization, for which today’s discourses of democracy and human rights could be considered
equivalents (Kuper 1999). Friedman’s work, however, is geared to showing how social and tech-
nological change actually succeeds in reshaping law. His claims about convergence and the role of
modernity, as we move to a global legal culture based around the ideas of individualism, equality,
and human rights, are much closer to the French idea (see, e.g., Friedman 1994, 2011).
In sharp contrast, in many places (and languages) legal culture is used with an unequivocally
positive meaning. This is because it is taken to point to the aspiration toward the culture of legality,
the ideal of the rule of law.12 This is particularly common in jurisdictions (or parts of jurisdictions)
such as the former Soviet Union, Latin America, or the south of Italy, where state rules are
systematically avoided or evaded. In these places, seen from the state’s perspective, there is a
culture of illegality so the normative goal of getting legality into the culture of everyday social and
political life involves reorienting the behavior of such populations toward (state) law. Neocultural
interventionists, carriers of the latest instantiation of the law and development movement, seek to
achieve a better rule-of-law culture by taking into account the local patterns of legal consciousness.
But they have been criticized for underestimating the extent to which people can put greater legality
to uses directly contrary to the rule-of-law agenda (Cohen 2009).
As this suggests, compliance with law by individuals can also have both idealistic and instrumen-
tal dimensions. Polish immigrants are more willing to move beyond semi-legality when experience
shows them the benefits of compliance (Kubal 2012); in Serbia, it is those who have done best out
of the larger social and economic changes in Eastern Europe who are most likely to endorse the
rule of law, whereas those who remain disadvantaged are likely to refuse legal values (Vukovik &
Cvejic 2014).13 By contrast, Silbey is puzzled by people’s faith in legality and finds it remarkable
that diverse and sometimes contradictory legal practices are nonetheless experienced by lay par-
ticipants as a taken-for-granted unity (Ewick & Silbey 1998). Why does the ideal of legality retain
its hold even when it does not deliver? “Why do people acquiesce to a legal system that, despite
its promises of equal treatment, systematically reproduces inequality?” (Silbey 2005, p. 323). Her
12Some authors from the Global South even adopt the terms legal culture and the culture of legality as if they were equivalents,
as when writing, for example, about processes of judicialization and juridification in Latin America (Couso et al. 2010).
13Though the picture is complicated by evidence that people’s attitudes toward the law and their actual use of the courts may
sometimes be inconsistent (Hendley 2013, Smulovitz 2010).
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answer is that the discrepancy between generalized accounts of law and the specific experiences
of social actors acts as a source of law’s power.
It is one thing to ask when people turn to law, another to query whether they should do so.
Arguably, the term legal culture could be reserved for descriptive/explanatory purposes, and the
expression culture of legality for normative and evaluative ones. This would then make it possible
to examine what sorts of legal cultures are more or less conducive to the culture of legality. But
deciding what is involved in creating a culture of legality is not (just) a technical question. Is it
necessarily beneficial to replace given social norms with those of the nation state in the context of
developing societies, with their typically strong legal pluralism, institutionallyweak governments,
and recurrent political instability?
There is likewise disagreement over how far the rule of law requires greater involvement of
the courts in social life. When should political activists choose litigation over social action? This
may depend on knowing how far courts can retain their autonomy as political conditions harden.
A contemporary history of Israeli legal culture tells us how the role of its supreme court changed
following the decline of political and cultural hegemony of the Labor movement. An activist court
buttressed the liberal elites, albeit protecting negative liberties more than positive social rights;
defended the secular camp against the rise of religion; and provided a significant, if not always
consistent, defense of the Arab minority. Surprisingly, the newly dominant political groups at first
let this pass, though they have now begun a determined counterattack (Mautner 2011a).
Several other recent case studies offer valuable examinations of processes involving the making
and unmaking of the rule of law. In Singapore’s one-party state, law serves as an important source
of legitimation in a regime that combines economic liberalism with political illiberalism (Rajah
2013). Will this approach to rule by law be taken as a model by leaders in places such as China
and Vietnam? What conditions make for rule by law as opposed to the rule of law? The fate
of political liberalism in British post-colonies was shaped by patterns of instrumental use of law
first established under colonial rule (Halliday et al. 2012). Embracing formalism helped judges in
Argentina survive dictatorships, but it also permitted those dictatorships to continue. Currently,
governments in places like Russia and Hungary have found ways to use law instrumentally by
exploiting loopholes in the constitution or packing the higher courts. Some writers discuss whether
kinds of rule of law should be calibrated to wider social conditions (Perenboom 2004).
Another reason why discussions of legal culture have normative valence arises from the need
to define what is meant by the legal in legal culture (Ackerman 1986). Much the same applies to
values such as legality. Gillespie (2006), for example, argues that the rule of law requires a state “to
relax controls over social discourse, open law-making forums to a broad range of views and give
citizens effective recourse against abuses of state power.” When made by authorized interpreters,
claims about what constitutes culture—or legal culture—are performative acts—ones with legal,
and often also social, consequences. Webber argues that social actors such as judges collectively
create a shared culture through their actions in coordinating with each other. For him,
the integrity of cultural explanations does not depend upon the “units” being exclusive, fully autono-
mous, or strictly bounded. Rather, it depends upon there being sufficient density of interaction to
generate distinctive terms of evaluation and debate. When there is that density, any examination of
decision-making in that context will want to take account of those terms. (Webber 2004, p. 32)
But official definitions of legal cultures do not always go unchallenged. As Sezgin shows,
subaltern groups often question the legitimacy of existing power relations and offer new images
and narratives of legality through which they will redefine their rights and entitlements under the
law. Oftentimes they will do that without necessarily altering the “law” or the “text” in question,
54 Nelken
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but the legality built around it (Sezgin 2012). Similarly, as diaspora communities grow, so do the
problems posed by legally pluralistic societies. Legal actors, and the experts who advise them, face a
variety of challenges in understanding the cultures of recent immigrants or other minority groups
(Shah 2005). In cases involving so-called cultural defenses, for example, courts have to decide if the
person claiming such defenses is a member of the culture of which she claims to be a part. What
if the practice defended is itself controversial within the other culture? What is to be done when
other cultures distinguish legal from moral obligations in a different way from ours (Renteln 2004)?
Is a universal concept of legal culture possible? Can it be theorized except from a given cultural
starting point? Seen from the perspective of a somewhat idealized picture of European forms of
social regulation, American legal culture is found to be far too adversarial and costly (Kagan 2001,
Nelken 2003). However, taking the United States as the standard leads to the conclusion that legal
culture in Brazil lacks elements of legality (Zimmermann 2008). Many accounts of legal cultures
therefore tell us more about the observers’ own culture than they do about that being described
(Ferrarese 1997). It is even possible to read the debate between Friedman and Blankenburg as one
shaped by differences in their Anglo-American and continental European legal cultures. For (what
civilian scholars call) Anglo-American legal culture, law should respond to public demand—hence
the priority given by Friedman to external legal culture—whereas, for the Europeans, this would
risk weakening the role of the state, legal institutions, and legal professionals.
Friedman’s version of the Anglo-American idea of legal culture may be especially unhelpful
when applied to countries with strong religious cultures, such as Thailand (Engel & Engel 2010).
Instead of accepting Friedman’s own view of internal and external legal culture as neutral analytical
categories, Engel sees them as a product of the legal culture that they purport to analyze. For him,
Friedman’s concern with law having an inside and an outside is itself a reflection of the project of
modernity, aimed at securing liberal legalism and secularism. Such a conception of legal culture
is linked to the aspiration of keeping politics and economics subservient to law and ensuring that
civil society plays its proper role (Engel 2012). As this reminds us, those studying legal culture
comparatively must be open to discovering that law and culture are related elsewhere in very
different and unexpected ways, and that values are in play that go beyond those connected with
the consolidation of the modern nation state (see, e.g., Chiba 1989, Glenn 2007, Jacob 2014,
Menski 2006).
An Illustration: The Making of South African Legal Culture
We have argued so far that facts, approaches, and values are all key issues to be addressed in writing
about and reading about legal culture. It can often be important to distinguish these matters, but
as we have already seen, they also interrelate. The best scholarship shows awareness of what this
involves in terms of building a theoretically sound argument. We shall take as our example Martin
Chanock’s recent monumental historical account of the effort by judges in South Africa to maintain
a semblance of liberal legalism in the period that saw the creation of the apartheid regime.14
Chanock (2001, p. 23) offers the following thoughts about the facts of legal culture:
A legal culture consists of a set of assumptions, a way of doing things, a repertoire of language, of
legal forms and institutional practices . . . as with all aspects of a culture, it changes in response to new
situations, but it also reproduces itself; its new responses fit into its existing forms.
14But I do not attempt to summarize the many substantive arguments in a book that runs to over 500 pages.
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LS12CH03-Nelken ARI 26 September 2016 13:22When dealing with the tricky questions of when and whether these facts constitute a cultural
unit, Chanock acknowledges significant complexities in what he nonetheless chooses to call South
African legal culture. He sets his story in a period of unabashed empire building and huge transfer
of legal institutions within which this colonial society sought to craft a narrative that placed the
source of its founding authority anywhere but in the locality where it was based. He expertly traces
the lines between the continuing-–and prestigious—English heritage, the construction/invention
of Roman-Dutch law, and the reinstutionalization of an African customary law that was made
increasingly irrelevant by changing conditions. Chanock also points to regional variations within
the state, such as the way the Transvaal was the area most eager to abandon English law; the
differences between the towns and the countryside; and, crucially, the contrast between the higher
court’s willingness to test the legality of government policies and the everyday work of lower
courts whose decisions were openly linked to the interests of local farmers.
Above all, he explores the many ways the new state project impacts fields such as criminal law,
labor law, land law, family law, and administrative law. But his key move is to parse legal culture as
a set of interrelated, distinct, but overlapping discourses, some professional, some administrative,
some political, and some popular, all set within the broader political and social discourses of state
and society. Each of these could draw on each other, sometimes affirmatively, sometimes critically,
and understood and represented the law in different ways. Not only did judges and legislatures
speak about law, so did people at large; religious organizations; the press; special interests; and
most importantly, politicians and bureaucrats. It turns out that, for the politicians and senior
officials who were the architects of apartheid, judges and courts were marginal as compared with
bureaucracy and the police.
The approach that Chanock adopts is clear already from his title—for him, legal culture is
something that is made—and can then be remade. Dodging the risk of tautology, he tells us
explicitly that the concept cannot provide an overall explanation of the interrelationships be-
tween law, society, and economy, nor, for example, of the role of law in politics and society. His
methodology involves reading legal texts not only as insiders would, so as to appreciate the legal
rationale, but also as outsiders, asking what is actually going on. But putting “law in context,” he
argues, posits too simple a model of separability between law, politics, economy, and society. He
recommends another form of contextualization that places the internal discourse of law within
a set of related discourses that include “external” discourses about law, as well as the economy,
politics, evolution, race, history, and justice, and is thus able “to preserve the important sense of
connectedness” (Chanock 2001, p. 21).
Chanock concedes that his emphasis on discourse can risk losing touch with the world of
events, acts, and outcomes. It tells us less than we might want to know about how (and how far)
the discourse(es) of legal culture penetrate or affect the larger society, the topic that is central
to the work of Silbey and others in their studies of the legal consciousness of those affected by
law. But his point is that “culture is not a facade to be thrust aside to reveal the real world of
actions and effects” (Chanock 2001, p. 24). We could say that he is looking to find the sources
of the contradictory hegemonic legality whose residues Silbey then looks for in the thinking and
perceptions of those who participate, more or less critically, in the circulation of these ideas.
For him, law is not a given but a range of questions and possibilities, a multivocality that yet
claims to have one authoritative voice. His project aims to uncover law’s role in weaving together
fantasy, imagination, myth, and illusion about self and others. This is why it is important to un-
derstand how Roman-Dutch law was made to represent Western civilization, or to learn about the
way black South Africans were given passes from their fictional tribal homelands into white areas.
Finally, values are obviously central to Chanock’s enquiry. His normative critique shows how
legal actors’ embrace of formalism allowed them to so often ignore the law’s contribution to
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severe institutionalized discrimination. We learn that responsibility in criminal law was imposed
on those otherwise deemed incapable of being responsible. Case law upheld freedom of contract
against a background of oppressive contractual relations, while professing the inconsistent ideology
that black South Africans were unable to understand voluntary promises as a form of obligation.
Overdrawn contrasts between African communalism and European individualism were deployed
as convenient. Law was color blind only where it suited. Enforcement of law was hamstrung
where it might damage white interests. But even where judges posed some resistance, governments
amended the law or found other ways to get around the courts.
Chanock’s sympathies lie with the ideals of those who fought for the new South Africa. In
keeping with others advocating the culture of legality, but unlike critical United States–based
writers such as Silbey, he is less interested in puncturing the hegemony of law than in finding ways
by which legality can play a genuinely significant role in everyday life. However, Chanock does also
point to some of the normative dilemmas being faced by those shaping the new legal culture. This,
he says, has been colonized not by the Westminster state but by the ideal of constitutionalism.
He points to the continuing difficulties of reconciling form and substance, as well as the new
challenges posed by both globalization and the politics of identity. He underlines the danger to
the state project of current high levels of violence and extreme social inequality and asks what
should be done about established practices of non-state policing, given that “a new policing may
mean more on the ground than a new constitutional discourse” (Chanock 2001, p. 536). For him,
it is the incapacities of the state then and now that represent the major threat to the rule of law.
Overall, Chanock’s work shows the heuristic value of using the term legal culture so as to make
sense of the many roles played by law in South Africa. He is especially deft at demonstrating its
instrumental use in local social struggles as well as its place in invented traditions or aspirational
projects. His story could be continued by showing the way South Africa’s current experiments with
law influence other places—as with its truth and reconciliation commission, constitutional court
decisions in favor of same sex marriage, or the concept of meaningful engagement in eviction cases.
CONCLUSION
This article has examined the part that is played by the controversial term legal culture in com-
parative legal studies. While acknowledging and illustrating the way the term has been used in a
wide variety of ways, it argues that it would be premature to jettison it for this reason.15 Those
employing the term, however, do need to pay careful attention to questions of facts, approaches,
and values. In particular, as exemplified by Chanock’s work, what matters is how these are put to-
gether. Contributions to the field will be the more valuable the more they offer plausible accounts
of why the facts they seek to explain or understand are best illuminated by the theoretical approach
they have adopted and the values that guide their research. Whether the facts of legal culture are
takento be attitudes or consciousness or discourses has implications for the appropriate approach
and methods to adopt (and vice versa). Moreover, because law is not just a matter of facts but also
a matter of counterfactual expectations and aspirations, finding ways to grasp (and evaluate) these
is more than just an explanatory task.
Further progress in comparative legal research across the globe involves careful research into
what is changing on the ground, while paying attention to developments in social science ap-
proaches and new normative understandings. The term legal culture is certainly not the only
15Confusion arising from different or misleading uses of current terminology needs to be sorted out. But the call to go
“beyond” them, as in Silbey’s (2005) talk of “after legal consciousness,” often turns out only to mean (no more but also no
less than) the need to give proper attention to new theoretical developments.
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candidate for this purpose.16 But its very complexity does help keep us aware of all these issues.
Although part of culture in general, legal culture represents an especially deliberate effort to fill
older texts and practices with new meanings. It seeks to provide for continuity and change while
giving the illusion of coherence (or at least connectedness) despite manifold contradictions. Well-
designed comparative case studies can make an important contribution to learning more about
how these processes work out in different places and how they are changing.
DISCLOSURE STATEMENT
The author is not aware of any affiliations, memberships, funding, or financial holdings that might
be perceived as affecting the objectivity of this review.
ACKNOWLEDGMENTS
I would like to thank the anonymous reviewer as well as my colleagues (and friends) Marc Hertogh,
Marina Kurchiyan, and Sally Merry for their comments on the final draft.
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