KEYWORDS.

Legal culture; Law and culture, legal consciousness, comparative law,

comparative sociology of law, South African legal cultire.

ABSTRACT

This essay seeks to provide an overview of how the controversial concept

of legal culture has been used so as to clarify its potential role in fruther

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 it is suggested that

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.

COMPARATIVE LEGAL RESEARCH AND LEGAL CULTURE:

FACTS, APPROACHES AND VALUES

David Nelken1

The Dickson Poon School of Law, King’s College, University of London,

The Strand, London, WC2R 2LS. david.nelken@kcl.ac.uk

1 I would like to thank my colleagues (and friends) Marc Hertogh,

Marina Kurchiyan and Sally Merry for their comments on the final draft.

1

What is the term legal culture good for? What part does it play- and what

part could it play in comparative socio-legal 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 endeavour2. 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, whether

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, Maunter, 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

organisations, 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 characterise differences between legal systems (such as

those reflected in their trends in litigation or prisons rates), and is

recommended for use when explaining why people (and societies) differ

in their use of law. And it also finds a place in accounts of pluralist

interactions between different kinds of law, or efforts to understand the

way that international or hybrid courts overcome the contrasting cultures

that judges from different jurisdictions bring with them.

2 Compare World Bank 2001 and Gillespie 2008.

2

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 socio -legal scholars, why

persist with this one?3 The question is all the more pressing given that

many critics have argued, as will be seen in this review, that the term

itself is a particularly problematic one, and is often employed in

misleading or unhelpful ways4. This essay argues that progress can be

made if we we ask three questions about any use of the term. What sort 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

3 It 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 and 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) and

‘communities’ (Cotterrell 1998) and – most obviously – ‘legal

consciousness’ (Silbey 2005). Other possibilities include ‘legal

traditions’ (Glenn 2007), ‘legal mentalities’ and ‘legal styles’ (Merryman

and Perez -Perdomo 2007), ‘legal complex’ (Karpik and Feeley 2007,

Halliday, Karpik and Feeley 2012), ‘legal epistemes’ (Legrand 1997b),

‘legal formants’ (Sacco 1991), ‘path-dependency’ (Mahoney 2000;

Pierson 2000) ‘regulatory styles’ (Haines 2005) and even ‘legal

autopoiesis’ (Teubner 1998). 4 Even Lawrence Friedman, who introduced the term in the 70’s

(Friedman 1975; 193-268) now says that he is not sure he would want to

reinvent it (Friedman 2006).

3

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’ can be

used as evidence of these differences? Are we speaking of attitudes or

also of behaviour? How does legal culture relate to legal rules,

institutions, social structure 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

their deepest unarticulated assumptions. Should we reserve the term for

irrational, or value- based action, as opposed to purely instrumental social

action? Above all perhaps, what sort and degree of coherence between the

elements of a given unit is being proposed when we speak of culture?

A frequent criticism of the term is that it confuses the part with the

whole. Lawrence Friedman, who introduced the term legal culture as a

‘term of art’, used it both to designate the ‘variable’ that, in his language,

‘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 a number of (measurable) facts can be included.

These encompass the attitudes (and behaviour) of the legal officials and

others who animate what he calls ‘internal legal culture’, as well as the

attitudes towards the law of individuals, groups and organisations

belonging to what he calls ‘external legal culture’. It is the demands of

4

these latter groups, whether or not they choose to invoke the law and

what they ask of it- which 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 by many of those who carry out domestic or international

surveys, though their preferred term is more often ‘legal consciousness’

(Gibson and Caldeira 1996; Grodeland and Miller 2015.) But it has also

been criticised for but 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 ‘anthropological’ 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 behaviour 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

behaviour 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: 1; see also Nelken 2007a, 2007b, 2012).

The problem is that if legal culture includes everything there would

seem to be nothing left for it to explain. Although this challenge needs a

response (see the next section) some leading authors over-react by

breaking up what is meant by legal culture into a number of different

topics. Sally Merry suggests that we can distinguish four ‘dimensions’ of

legal culture. The first is ‘the practices and ideologies within the legal

5

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: 56-57). 5

But even Merry concedes that ‘each of these categories overlaps

and influences the others‘ (Merry: 57). And, for most comparative socio-

legal scholars, the value of the term lies exactly in pointing to the way

culture itself embodies and creates these connections. The term legal

culture 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: 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 and

Bruensma 1991), The Japanese approach to law’ (Johnson 1996), or

‘French criminal justice’ (Hodgson 2005), presuppose the existence of

distinctive national cultures.6 Differences between legal cultures are

often thought to correspond roughly topolitical boundaries (see e.g.

Gessner, Hoeland and Varga 1996; Friedman and Perez -Perdomo 2003;

5 Similarly, Silbey 2010 distinguishes legal ideology; legal consciousness;

legalities, cultures of legality, and counter-law; and the structure of

legality. 6 Though some authors sees these as internally differentiated, as with

Bell’s text on French legal cultures (Bell 2001).

6

Kurkchiyan M. 2011). Because of the use of law in nationalising projects,

there may even be more uniformity in a national legal culture than in

respect of other aspects of culture. There is also some empirical evidence

of psychological differences in national traits in the way people relate to

each other (Bierbrauer 1994; Hofstedte 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 of general clauses as compared to detailed drafting.

There may 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, the part played by ‘alternatives’ to law, including

not only arbitration and mediation and the many ‘infrastructural’ ways of

discouraging or resolving disputes.

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 or bankruptcy. Tort law, for example, has been shown to be

a fruitful source of cultural symbols – as well as an index of social

tensions.7 But even such apparently unconnected branches of law within a

given society can manifest remarkable levels of cultural similarity

(Whitman 2005b). Those engaged in debates over why some countries

have higher rates of incarceration than others (e.g. the USA as compared

at the other extreme to Japan) are unwise to ignore, as they tend to do,

7 Shapo 2003 provides a court- centred discussion, Engel and McCann

eds. 2009, a more wide ranging one.

7

related differences in the extent to which the societies concerned engage

in civil litigation.

On the other hand, the boundaries of legal culture may not always

be national ones. The ideas of family lawyers 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 characterised by political,

social and legal pluralism and competing religious and/or culturally based

normative orders. Legal systems have always been affected by a varied

processes of borrowing, imitation and imposition. 8 But increasingly, local

legal cultures are challenged by the effects of globalisation (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 Organisation requirements. Pre-existing norms that are

local, informal, subjective and relational are challenged by the turn

towards more formality and objectivity (Potter 2001). We also witness

the growth of so-called ‘third cultures’ of international trade,

communication networks and other transnational processes, as seen for

example in lex mercatoria or cyber communities.

Students of comparative legal culture also examine similarities and

differences in meanings and logics at different macro, mezzo and micro

levels, from that of national or super- national 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

8 See Benton 2002, for a particularly subtle account of the spread of

European law.

8

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 at some times law is

treated as a fact whereas in others it is seen as more of a counter-factual

ideal. As important, what is referred to as globalization usually represents

the attempted imposition of given legal culture on other societies-a

‘globalised localism’. Importing countries may be offered both the

Anglo-American model whose prestige is spread by trade and the media,

or national European versions of the more intellectually impressive

continental legal systems embodied 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 which does or should ‘work’.

If, for Friedman, legal culture involved studying attitudes (and

behaviour), recent work on legal culture, following the ‘interpretative

turn’, has shifted to analysing 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

9

idea of fairness from that of a ‘just price’ to that of the ‘meeting of

minds’ (Rosen 2008: 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 labour, property, notice, and

community consent (Silbey 2012: 329-330). 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,

organisations, institutions, groups, individuals and attitudes, what is

described as ‘culture’ will not always means 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. And different definitions of the

facts of legal culture will reflect contrasting understandings of what is

meant by culture.

LEGAL CULTURE AS APPROACH

As this suggests, the term legal culture is also part of an approach to the

study of law in society rather than simply an object of enquiry (see e.g.

Nicholson 2008). The term offers a way of looking beyond doctrinal and,

more generally, court -centred 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

10

socio-legal identity’ (Kurkchiyan 2012: 221). Perspectives as varied as

legal theory, legal history, organisational 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 approach can help substitute the old ‘legal families’ approach which

placed exaggerated importance on the historical derivation of legal rules

(Siems 2014; Husa 2015).

To respond to the accusation that some definitions of legal culture

leave nothing to explain it is important to distinguish approaches that

treat legal culture as a variable from those that seek to grasp the nuances

of its meanings.9 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 in their new legal culture of arrival (Kubal 2012).

Recent Polish immigrants to the UK at first often put law on a pedestal as

an idealistic aspiration rather than as something to be followed in

9 Such differences also have implications for methods used together

evidence of legal culture. It is one thing to ask people for their attitudes

towards legal institutions, something else to offer interpretative accounts

of the logic of cultural differences which few of the members of the

culture themselves may be able to articulate. See Whitman’s rich

comparative analyses of deep - lying cultural differences, for example in

approaches to privacy, mercy or dignity (Whitman 2000, 2003, 2004b), or

the rights of producers and consumers, (Whitman, 2007). Sometimes,

too, people are unaware of the truth about their legal culture because this

is deliberately misrepresented by politicians and the media (Haltom and

McCaan 2004).

11

everyday life. When faced with the choice to comply with the full

panoply of legal requirements or remain in the black or grey economy,

semi -legality felt at first like the safe and familiar option. Interestingly

however such attitudes changed over time (Kubal 2012: 207; see also

Shamir 2015).

For Friedman legal culture also points to the relative importance of

social and technological developments, and the social pressures they

build up. Valuable historical studies have followed his lead by examining

how this 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 USA in the face of rapid industrial and social transformation

(Steinmetz 2000), or accounting for differences in nation - state responses

to mass toxic torts (Boggio 2003).

But does Friedman downplay the importance of the institutions that

shape ‘internal legal culture’? Blankenburg put forward an important

challenge using a case- study designed to explain why Germany made so

much more use of the courts than those in the contiguous areas of

Netherlands, despite being allegedly so similar socially and economically.

Comparing the range of formal and informal dispute mechanisms in both

countries, he argued that rates of litigation are better explained by

institutional and what he calls ‘infrastructural’ differences on the supply

side of law, rather than by differences in the demand for law deriving

from the folk culture of each country (Blankenburg 1997; but see also

Hertogh 2012).10

10 There was a similar, if often over -simplified, 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

12

More recently, (though without citing him), Smulovitz reached

similar conclusions about the relative importance of institutions and the

supply side of legal culture in explaining socio- legal change in

Argentina. She argued that the 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: 251). It is not obvious, however, that Blankenburg’s contrast

between supply and demand corresponds to the way Friedman would use

his categories of internal and external legal culture. And any effort to

explain why supply side institutions take the form they do might also

need to bring the demand side back into the picture (Nelken 1997).

What then of the criticism that efforts to use legal culture as an

explanation risk tautology? Kenney argued that, like the concept ‘political

culture’, (which may have influenced Friedman’s choice of terminology),

it is ‘everything and nothing simultaneously’ (Kenney 1996). For

Webber, 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’ (Webber 2004: 28). 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).

conflict (Miyazawa 1987), or instead by deliberate government-created

limitations on the opportunities to go to court (see e.g. Haley 1978;

Rasmeyer and 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 infrastructures should themselves be called legal culture.

13

One solution to the risk of tautology is to use legal culture less as

an explanation than 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 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 USA 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), or 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 UK and

Denmark complain most about the imposition of European Union law but

then turn out to be the countries which 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 resolving trade disputes over tuna (Feldman, 1997, 2001,

2006a, 2006b)? Given the similar legal and political systems that shaped

them, why are prosecutors so influential in Russia but not in Poland

(Polak and Nelken 2010)? Why is Italy in the lead amongst states trying

to assist victims of human trafficking when it is relatively inhospitable to

the victim support movement in of 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 either using the

term as part of the explanans or part of explanandum- we just need to be

14

clear what we are doing. We could, for example, either investigate the

causes of what we call Americal legal culture or the way its influences

other societies. Likwise, 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 or Norway. In the 1980’s, 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- Seppala 2007). Once achieved

the low incarceration rate then became a badge of pride.

But for 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), it does become 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 terms, ‘to a definition of a style of social existence’ (Geertz

1983: 218). Rosen, 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’ (Rosen 2008: 3). 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'

11 This is acknowledged for example in efforts to predict changes in the

interpretative frameworks used by the courts (Couso et.al. 2010).

15

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).

But must the search for explanation depend on identifying causal

variables?12 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: 5). They admit, however, that it is

important not to exaggerate the isomorphism between legal culture and its

social environment. Law, they tell us, has a 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: 92; my italics). As this suggests, it is harder to

make predictions with an interpretative approach – and that may often not

even be the goal. 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.

12 For Kurkchiyan legal culture ‘is the product of a convoluted interplay

between historical legacy, institutional performance and popular

attitudes.’ ‘(S)uch a broad picture’, she says, ‘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 (Kurchiyan 2012: 250).

16

LEGAL CULTURE AS VALUE

There are a variety of ways in which normative questions enter

explicitly or implicitly into comparative enquiries about legal culture.

Most obviously the aim may be to offer evaluations, for example of

individualistic as compared to 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 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’ (Ogus 2011: 163). Whether differences in legal

cultures should be preserved as far as possible or rather normalised or

harmonised away is a matter of keen debate. Writing about what he calls

‘the politics of legal cultures’, Banakar 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?’

(Banakar 2008: 153).

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

essentialist, over- determining, and xenophobic, culture placed too much

stress on the past governing the present (Kuper 1999). 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

17

patterns inherited from their communist past (Krygier 1996-1997).

Similarly, many human rights projects see their task as overcoming

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 civilisation, for which

today’s discourses of democracy and human rights could be considered

equivalents (Kuper 1999). Friedman’s work is in fact about showing how

social and technological change succeeds in reshaping law. His claims

about convergence and the role of modernity, as we move to a global

legal culture based round 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 towards the ‘culture of legality’, the ideal of the

rule of law.13 This is particularly common in those 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 behaviour of

such populations towards (state) law. Neo-cultural interventionists,

carriers of the latest instantiation of the ‘law and development‘

movement, seek to achieve a ’rule of law culture’ by taking into account

13 Some authors from the Global South adopt the term legal culture and

the culture of legality as equivalents, as when writing, for example, about

processes of judicialisation and juridification in Latin America (Couso et.

al. 2012).

18

the local patterns of legal consciousness. But they have been criticised 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 also has both

idealistic and instrumental 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

most well out of the larger social and economic changes in Eastern

Europe who are most likely to endorse the rule of law, whilst those who

remain disadvantaged are likely to refuse legal values (Vukovik et. al.

2014). 14 Silbey, on the other hand, is puzzled by people’s faith in legality

and finds it remarkable that diverse and sometimes contradictory legal

practices are nonetheless experienced by lay participants as a taken-for-

granted unity (Ewick and 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: 323). She suggests

that the discrepancy between generalized accounts of law and the specific

experiences of social actors acts as a source of law’s power.

Arguably, the term legal culture could be reserved for descriptive/

explanatory purposes, and the ‘culture of legality’ for normative and

evaluative ones. It is one thing to ask when people turn to law, another to

query whether they should. 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

14 Though the picture is complicated by evidence that people’s attitudes

towards the law and their actual use of the courts may sometimes be

inconsistent (Hendley 2013, Smulovitz 2010).

19

social norms with those of the nation state in the context of developing

economies places, with their typically strong legal pluralism,

institutionally weak governments, and recurrent political instability?

There can be disgreement 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? How far can courts 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 Labour

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, defence of the Arab minority. Surprisingly, the newly

dominant political groups at first let this pass, though they have now

begun a determined counter –attack (Mauntner 2011a).

A number of 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 a form 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 turn out to be both built on patterns of

instrumental use of law first established under colonial rule. (Halliday,

Karpik, Feeley 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 exploiting loopholes in the constitution or

packing the higher courts.

20

Another reason why discussions of legal culture have normative

valence arise from the need to define what counts as ‘legal’ in legal

culture (Ackerman 1986). The same applies to values such as ‘legality’.

Gillespie, for example, argues that the rule of law requires a state ’to

relax controls over social discourse, open law-making forums to a broad

rage of views and gives citizens effective recourse against abuses of state

power’ (Gillespie 2006). But others suggest that the call for the rule of

law needs to be related to wider social conditions (Perenboom 2003).

When made by authorised interpreters, claims about what constitute

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 acts. For him.‘the

integrity of cultural explanations does not depend upon the “units” being

exclusive, fully autonomous, 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: 32).

But even authorised definitions of legal cultures do not always go

unchallenged. As Sezguin 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. Often times they will do that without

necessarily altering the “law” or the “text” in question, but the legality

built around it (Sezguin 2012). 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 challengs in understanding the

cultures of recent immigrants or other minority groups (Shah 2005). In

cases involving so-called cultural defences, for example, courts have to

21

decide if the person claiming such defences is a member of the culture of

which she claims to be 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 theorised

except from a given cultural starting point? Seen from the prespective of

a somewhat idealised picture of European forms of social regulation,

American legal culture is found to be far too adversarial and costly

(Kagan 2001, Nelken 2003). On the other hand, when the USA is taken as

the standard, it leads to the conclusion that legal culture in Brazil lack

elements of legality (Zimmerman 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,

for example, may be especially unhelpful when applied to countries with

strong religious cultures such as Thailand (Engel and 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 analyse. 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

22

of keeping politics and economics subservient to law and ensuring that

civil society plays its proper role (Engel 2012). As this suggests, 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 different values are in play (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.

But it is equally important to see how they interrelate. Although some

suggestions about this have already been made, an in-depth illustration

should help make this clearer. 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

which saw the creation of the apartheid regime.15

Chanock 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…‘(A)s 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’ (Chanock 2001: 23). When dealing with the tricky

question of whether these facts constitute a cultural unit, Chanock

acknowledges significant differentiation 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

15 But I will not attempt to summarise the many substantive argument in a

book that runs to over 500 pages.

23

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 traces the lines between the continuing – and prestigious-

English heritage, the construction/invention of Roman- Dutch law and the

re-instutionalisation of an African customary law that was made

increasingly irrelevant by changing conditions.

Chanock also points to regional specificities, such as the way the

Transvaal was 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,

labour 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

organisations; 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 are

marginal as compared to 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 remade). The term, he tells

us, provides no overall explanation of the interrelationships between law,

society and economy, nor, for example, of the role of law in politics and

24

society. Dodging the risk of tautology, he tells us explicitly that the term

cannot provide an overall explanation of the interrelationships between

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 contextualisation

that places the internal discourse of law within a set of related discourses

which 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: 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

: 24).We could say that he is looking to find the sources of the

contradictory hegemonic legality whose residues Silbey finds in the

thinking and perceptions of those who participate, more or less critically

in the circulation of these ideas. His point is that law is not a given but a

range of questions and possibilities; a multivocality which 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 understand how Roman- Dutch law

was made to represent ‘Western civilisation’, or learn about the way

25

black South Africans were given "passes" from their fictional ‘tribal

homelands’ into white areas.

Finally, values are obviously central to Chanock’s enquiry. His

sympathies lie (if not uncritically) with the ideals of those who fought for

the new South Africa. Significantly, unlike critical, USA based, writers

such as Silbey, but in keeping with others advocating the ‘culture of

legality’, he is less interested in puncturing the hegemony of law but

rather in finding ways by which legality can play a genuinely significant

role in everyday life. The normative bite –which also has wider

relevance- comes from showing how in the past legal actors’ embrace of

formalism allowed them to so often ignore the law’s contribution to

severe institutionalised 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, whilst 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 colour

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

round the courts.

On the other hand, Chanock also points to some of the normative

dilemmas being faced by those shaping a new legal culture in modern

South Africa. This, he says, has been colonised 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 both by globalisation and the politics of identity. He

26

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: 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 part played by law in South

Africa. He is especially deft at demonstrating its instrumental role in local

social struggles but also its reliance on invented tradition or particpation

in larger aspirational projects. And the story continues, as in the way

South Africa’s current experiments with law influence other places– as

with its truth and reconciliation commission, constitutional court

decisions in favour of same sex marriage, or the concept of meaningful

engagement in eviction cases.

Conclusion

This essay has examined the part that is played by the controversial

term legal culture in comparative legal studies. Whilst 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. 16 What is

needed, however, is for anyone employing the term to pay careful

attention to questions of facts, approaches and values. In addition, as

exemplified by Chanock’s work, what matters is how these are put

16 Confusion 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 talk of ‘after legal consciousness ‘ (Silbey 2005) often turn out

only to mean paying more attention to new theoretical developments.

27

together. 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 taken to be attitudes or consciousness or discourses has

implications for the appropriate approach and methods to adopt (and vice

versa). Likwise, law is not just a matter of facts but also a matter of

counter -factual expectations and aspirations. Grasping (and evaluating)

these is more than just an explanatory task and requires the exercise of

reflexivity.

Further progress in comparative legal research across the globe

involves careful research into what is changing on the ground, whilst

paying attention to developments in social science approaches and new

normative understandings. The term legal culture is not the only

candidate for this purpose.17 But its very complexity does help keep us

17 Competing terms may sometimes have advantages. Glenn, for example,

insisted that the concept of ‘tradition’ was less linked to the idea of

spatial boundaries, and was a widely used folk concept, whereas culture

is used only in the West (Glenn 2004). But, equally, they may have their

own problems. The term ‘tradition’, it is alleged, may make it too easy to

neglect socio-economic and political influences, as well as the so called

‘intentionalist’ fallacy (Whitman 2004a). The term ‘community’,

proposed by Cotterrell to do much of the work of legal culture, has been

said to operate only at a symbolic level of semantic productions and to

have nothing to do with the actual capacity of law and politics to regulate

affairs. Both ‘law in action’ and ‘living law’ (as contrasted with ‘law in

books’) separate what legal culture tries to bring together. As far as

‘autopoiesis’ is concerned, whereas one of the purposes of using the term

legal culture is to examine the relation between law and the wider culture,

28

aware of all these isues. Whilst 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 whilst

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.

LITERATURE CITED

Ackerman B. 1986. Law, economics and the problem of legal culture.

Yale Law School Legal repository.

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?

article=1144&context=fss_papers.

Arold, NL. 2007. The legal culture of the European court of human

rights. Amsterdam: Martinus Nijhoff .

Banakar R. 2008. The Politics of Legal Cultures. Retfoerd: The Nordic

Journal f Law and Justice 31: 37-60.

Banakar R. 2015. Driving Culture in Iran: Law and Society on the Roads

of the Islamic Republic. London: IB Taurus.

Bell, J. 2001. French Legal Cultures. Cambridge: Cambridge University

Press.

Luhmann’s theory resolves this by theoretical fiat (Nelken 2001; see also

Gillespie 2006). It will not always be necessary to choose between legal

culture and its alternatives. For example, as we have noted, many who

write about legal culture have already moved their focus from the ‘facts’

of attitudes and behaviour to a focus on discourse.

29

Benton L. 2002 Law and Colonial Cultures: Legal Regimes in World

History, 1400-1900. Cambridge: Cambridge University Press.

Bierbrauer G. 1994. Toward an understanding of legal culture: variations

in individualism and collectivism between Kurds, Lebanese, and

Germans. Law and Society review, 28: 243-264.

Blankenburg E. 1997 Civil litigation rates as indicators for legal culture.

In Comparing Legal Cultures D.Nelken ed. pp. 41–68. Aldershot:

Dartmouth.

Blankenburg E. and Bruinsma, F. 1991. Dutch Legal Culture. Alphen

aan den Rijn: Kluwer Law International.

Bruinsma F.and Blankenburg E. 2000. Dutch Law in Action. Nijmegen:

Ars Aequi Libri.

Boggio A. 2003. The puzzle of mass torts A comparative study of

asbestos litigation. Stanford: Stanford University Press.

Chanock M. 2001. The making of South African legal culture 1902-1936:

Fear, favour and prejudice. Cambridge: Cambridge University Press.

Chase OG. 2007. Law Culture and Ritual: Disputing Systems in Cross –

Cultural Context. New York: NYU Press.

Chiba M. 1989. Legal pluralism: toward a general theory through

Japanese legal culture. Tokyo: Tokai University Press.

Church TW. 1982. Examining local legal culture: practitioner attitudes

in four criminal courts. Washington: NIJ.

Cohen A. 2009. Thinking with culture in law and development. Buffalo

Law Rev. 57: 511.

Coombe RJ. 1998. Contingent Articulations: A Critical Cultural Studies

of Law. In Law in the Domains of Culture. Ed.. A. Sarat and J. Simon,

pp.21-64. Ann Arbor: University of Michigan Press.

Cotterrell R. 2004. Law in Culture. Ratio Juris 17: 1-14.

30

Cotterrell R. 1997. The concept of legal culture. In Comparing legal

cultures ed. D. Nelken pp. 13-32. Aldershot: Dartmouth.

Cotterrell R. 1998. Law and community: A New relationship? Current

Legal Problems 51.1 : 367 – 391.

Couso J. , Huneeus A., and Sieder R. 2010. Cultures of legality:

judicialization and political activism in Latin America. Cambridge:

Cambridge University Press.

DiFonzo J.H. 1997. Beneath the Fault Line: The popular and legal

culture of Divorce in Twentieth Century America, Charlottesville:

University Press of Virginia.

Engel D. and. Engel JS. 2010. Tort, Custom, and Karma: Globalization

and Legal Consciousness in Thailand. Stanford: Stanford University

Press.

Engel DM. 2012 The Uses of Legal Culture in Contemporary Socio-

Legal Studies: A Response to Sally Engle Merry in Using Legal Culture

ed. D. Nelken. pp. 77-85. London, Wildy: Simmons and Hill.

Engel D. and McCann M. 2009. Fault Lines. Tort Law as Cultural

Practice Stanford: Stanford University Pres.s

Ewick P. and Silbey S. 1998. The Common Place of the Law Chicago:

Chicago University Press.

Feldman E. 1997. Patients’ rights, citizen movements and Japanese legal

culture. In Comparing Legal Cultures ed. D. Nelken pp. 215–36.

Aldershot: Dartmouth.

Feldman E. 2001. Blood justice, courts, conflict and compensation in

Japan, France and the United States. Law and Society Review 34: 651–

702.

Feldman E. 2006a. The culture of legal change: a case study of tobacco

control in twenty-first century Japan. Michigan Journal of International

31

Law 27: 743–821.

Feldman E. 2006b. The tuna court: law and norms in the world’s premier

fish market. California Law Review 94: 313–69.

Ferrarese. MR. 1997. An entrepreneurial conception of the law: the

American model through Italian eyes. In Comparing Legal Cultures ed.

D. Nelken p.157 Aldershot: Ashgate.

Field S. 2012. Finding or Imposing Coherence? Comparing National

Cultures of Youth Justice. In Using Legal Culture ed. D. Nelken pp. 306-

326. London: Wildy, Simmons and Hill.

Friedman L. 1975. The legal system: A social science perspective. New

York: Russell Sage.

Friedman L. 1994. Is there a modern legal culture? Ratio Juris 7: 117-

131.

Friedman L. 1997. The concept of legal culture: A reply. In Comparing

legal cultures, ed. D. Nelken pp. 33-40. Aldershot: Dartmouth.

Friedman L. and Perez-Perdomo R. 2003. Legal culture in the age of

globalization: Latin America and Latin Europe. Stanford: Stanford

University Press.

Friedman L. 2006. The place of legal culture in the sociology of law. In

Law and Sociology ed. M. Freeman pp.185-199. Oxford: Oxford

University Press.

Friedman L. 2011. The human rights culture: A study in History and

Context. New Orleans: Quid Pro Books.

Galanter M. 2009. India’s Tort deficit: Sketch of a historical portrait. In

Fault Lines: Tort Law as Cultural Practice ed. D. Engel and M.

McCann. p. 47. Stanford: Stanford University Press.

Garapon, A. 1995. French Legal Culture and the Shock of

'Globalization', in Social and Legal Studies 4: 493-506.

Geertz C. 1983. Local Knowledge: Fact and law in Comparative

32

Perspective in C. Geertz Local Knowledge: Further Essays in

Interpretive Anthropology pp.167 -234. New York: Basic Books.

Gessner V., Hoeland A., and Varga C. eds., 1996. European Legal

Cultures. Aldersghot: Dartmouth.

Gibson JI . and Caldeira GA. 1996. The legal cultures of Europe, Law &

Society Review 30: 55-86.

Gillespie J. 2006. Transplanting commercial law reform: developing a

rule of law in Vietnam. Aldershot: Ashgate.

Gillespie J. 2008. Developing a decentred analysis of legal transfers. In

Examining practice, interrogating theory: comparative studies in Asia,

ed. P. Nicholson and S. Biddulph pp. 25-70. Amsterdam: Martinus

Nijhoff.

Glenn P. 2004. Legal cultures and legal traditions. In Epistemology and

Methodology of Comparative Law ed M.Van Hoeck p. 32. Oxford:

Oxford University Press.

Glenn P. 2007. 3rd ed. Legal Traditions of the World Oxford: Oxford

University Press.

Grodeland AB. and Miller WL. 2015. European Legal Cultures in

Transition Cambridge: Cambridge University Press.

Haines F. 2005. Globalisation and regulatory character. Aldershot:

Ashgate.

Haley, J.O. 1978. The myth of the reluctant litigant. Journal of Japanese

Studies 4: 359-390.

Haltom, W.and McCaan, M. 2004. Distorting the Law, Chicago: Chicago

University Press.

Hendley K. 2013. The Puzzling Non-Consequences of Societal Distrust

of Courts: Explaining the Use of Russian Courts. Cornell Int'l L.J. 45:

517.

Hertogh M. 2012 The Curious Case of Dutch Legal Culture: A

33

Reassessment of Survey Evidence. In Using Legal Culture ed. D. Nelken

pp.189-217. London: Wildy, Simmons and Hill.

Hodgson J. 2005. French Criminal Justice: A Comparative Account of

the Investigation and Prosecution of Crime in France. Oxford: Hart.

Hofstede G. 1980/2001. Culture’s Consequences. New York: Sage

Husa J. 2015. A new introduction to Comparative Law. London:

Bloomsbury.

Jacob R. 2014. The Judge and the Sacred: Notes for a Comparative

History of Western and Chinese Judicial Cultures. 1 Asian Journal of

Law and Society.

Johnson D. 1996. The Japanese way of justice. Oxford: OUP.

Kagan R. 2001. Adversarial legalism: the American way of law.

Cambridge, Mass: Harvard University Press.

Kahn P. 2000. The Cultural Study of Law. Chicago: University of

Chicago Press.

Halliday TC. Karpik, L. Feeley MM. 2007. Fighting for Political

Freedom: Comparative Studies of the Legal Complex and Political

Liberalism, Oxford: Hart.

Halliday TC. Karpik L and Feeley MM. 2012. Fates of Political

Liberalism in the British post-colony: The Politics of the Legal Complex.

Cambridge: Cambridge University Press.

Kenney S. 1996. Review of E. Blankenburg and F. Bruinsma Dutch legal

culture 2nd ed, Law and Politics Book Review 6, 9: 122-123.

Kubal A. 2012 Socio-legal Integration: Polish Post-2004 EU

Enlargement Migrants in the United Kingdom. Aldershot: Ashgate.

Krygier M. 1996–97. Is there constitutionalism after communism?

Institutional optimism, cultural pessimism, and the rule of law.

International Journal of the Sociology of Law 26: 17–47.

Kuper A. 1999. Culture: the anthropologist’s account. Cambridge: Mass.

34

Harvard University Press.

Kurkchiyan M. 2009. Russian legal culture: an analysis of adaptive

response to an institutional transplant. Law & Social Inquiry 34: 337-364

Kurkchiyan M. 2011. Perception of law and social order: a cross-national

comparison of collective legal consciousness. Wisconsin International

Law Journal 29: 2.

Kurkchiyan M. 2012. Comparing Legal Cultures: Three Models of Court

for Small Civil Cases. In Using Legal Culture ed. D. Nelken pp. 218 -

250. London: Wildy, Simmons and Hill.

Lappi-Seppälä T. 2007. Penal Policy in Scandinavia. Crime and Justice

36: 217-295.

Legrand P. 1997b. Fragments on law as culture. Deventer: W.E.J.

Tjeenk Willink.

Mahoney J. 2000. Path dependence in historical sociology. Theory and

Society 29: 507-548.

Maunter M. 2011a. Law and the Culture of Israel. Oxford: Oxford

University Press.

Mauntner M. 2011b. Three approaches to law and culture. Cornell Law

Review 96: 839.

Menski WF. 2006. Comparative Law in a Global Context: The Legal

Systems of Asia and Africa, 2nd. Ed. Cambridge: Cambridge University

Press.

Merry S. 2012. What is Legal Culture? An Anthropological Perspective

in Using Legal Culture ed. D. Nelken ed. pp. 52-76. London, Wildy,

Simmons and Hill.

Merryman JH. and Perez -Perdomo R. 2007. 3rd ed. The Civil law

tradition: Europe, Latin America, and East Asia. Stanford: Stanford

University Press.

Mezey N. 2003. Law as Culture. In Cultural Analysis, Cultural Studies

35

and the Law. Moving beyond Legal Realism, ed. A. Sarat and J. Simon

pp. 37-72. Durham, Duke University Press.

Miyazawa S. 1987. Taking Kawashima Seriously: A Review of Japanese

Research on Japanese Legal Consciousness and Disputing Behavior. Law

& Society Review 21: 219-242.

Nelken D. 1995. Disclosing/ invoking legal culture. In Legal culture,

diversity and globalisation ed. D.Nelken. Special issue of Social and

Legal Studies 4:4: 435-453.

Nelken D. 1997. Puzzling out legal culture: A comment on Blankenburg.

In Comparing Legal Cultures ed D.Nelken pp.58-88. Aldershot,

Dartmouth.

Nelken D. 2001. Beyond the Metaphor of Legal Transplants?:

Consequences of Autopoietic Theory for the Study of Cross - Cultural

Legal Adaptation'. In Law's New Boundaries: The Consequences of

Legal Autopoiesis ed. J. Priban and D. Nelken, pp. 265-302. Aldershot:

Dartmouth .

Nelken, D. 2003. Beyond compare? Criticising the American way of law.

Law and Social Inquiry 28: 181–213.

Nelken D. 2004. Using the concept of legal culture. Australian Journal

of Legal Philosophy 29: 1.

Nelken D. 2006. Rethinking legal culture. In Law and sociology, ed. M.

Freeman pp. 200-224. Oxford: Oxford University Press

Nelken D. 2007a. Defining and using the concept of legal culture. In

Comparative law: a handbook ed. E.Orucu, E. and D.Nelken. pp. 109-

132. Oxford: Hart.

Nelken D. 2007b. Three problems in employing the concept of legal

culture, in. Explorations in legal culture, ed. F. Bruinsma F. and D.

Nelken pp. 11-28. Amsterdam: Reed Elsevier.

Nelken D. 2009 The Temple of Rights: Review Essay of Nina-Louisa

36

Arold, European Public Law 15, 3: 447-456.

Nelken D. 2011 Human Trafficking and Legal Culture, 43 Israel Law

Review 479-513.

Nelken D. 2012. Using Legal Culture: Purposes and Problems. In Using

Legal Culture ed. D. Nelken 2-51. London: Wildy, Simmons and Hill

Nelken D. 2013. Can Prosecutors be too Independent? An Italian case-

study. In European penology? Ed. T. Daems, S. Snacken, D. Van der vyl

Smit pp. 241- 261. Oxford: Hart.

Nicholson P. 2008. Legal culture repacked: Drug Trials in Vietnam. In

Examining practice, interrogating theory: Comparative Legal Studies in

Asia ed. P.Nicholson and S. Biddulph pp.71-108. Amsterdam: Martinus

Nijhoff.

Ogus A. 2011. The economic approach: Competition between legal

systems. In Comparative Law:A Handbook ed. E.Orucu and D.Nelken

pp. 155-167. Oxford: Hart.

Palmer N. 2015. Courts in Conflict. Oxford: OUP .

Perenboom R. ed. 2004. Asian Discourses of rule of law, London:

Routledge.

Pierson, P. 2000. Increasing returns, path dependence, and the study of

politics, Am. Pol. Sc. Review 94: 251-267.

Polak P. and Nelken D. 2010. Polish Prosecutors, Corruption and Legal

Culture. In East-Central Europe After Transition: Towards a New Socio-

Legal Semantics, ed. A. Febbrajo and W. Sadurski pp. 219-254.

Aldershot: Ashgate.

Potter PB. 2001. The Chinese Legal System: Globalisation and Local

Legal Culture, London: Routledge.

Rajah J. 2013. Authoritarian rule of law – legilsation, discourse and

legitimacy in Singapore, Cambridge: Cambridge University Press

Ramseyer, JM. and Nakazato M. 1999. Japanese Law: An economic

37

approach, Chicago: University of Chicago Press.

Renteln A.D. 2004. The cultural defense, Oxford: Oxford University

Press.

Rosen L. 2008. Law as Culture Princeton: Princeton University Press

Sacco R. 1991. Legal formants: A dynamic approach to comparative law

Am. J. Comp. L., 1-34.

Sassen S. 2006. Territory, Authority, Rights: From Medieval to Global

Assemblages. Princeton: Princeton University Press.

Sezgin Y. 2011. The Role of Alternative Legalities in Bringing about

Socio-legal Change in Religious Systems in Using Legal Culture ed. D.

Nelken pp. 344-362. London: Wildy, Simmons and Hill.

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: Emerald.

Shah P. 2005. Legal Pluralism in Conflict. London: Glasshouse Press.

Shapo MS. 2003. Tort Law and Culture. Durham, NC: Carolina

Academic Press.

Siems M. 2014. Comparative Law. Cambridge: Cambridge University

Press.

Silbey S. 2005. After legal consciousness Annu.Rev. Law.Soc.Sci. 1:

323–68.

Silbey S. 2010. Legal culture and cultures of legality. Handbook of

Cultural Sociology ed. J R. Hall L. Grindstaff and M. Cheng- Loo, pp.

470-479. London: Routledge.

Silbey S. 2012. J. Locke, op. cit.: Invocations of Law on Snowy Streets.

In Using Legal Culture ed. D. Nelken pp.120-152. London: Wildy,

Simmons and Hill.

Steinmetz W. 2000. Private Law and Social Inequality in the Industrial

38

Age: Comparing Legal Cultures in Britain, France, Germany, and the

United States, Oxford: Oxford University Press.

Smulovitz C. 2010. Judicialization in Argentina: Legal Culture or

Opportunities and Support structures. In Cultures of legality:

judicialization and political activism in Latin America, ed. J. Couso, A.

Huneeus and R. Sieder pp. 234-253. Cambridge: Cambridge University

Press.

Tanase T. 2010. Community and the Law: A critical reassessment of

American liberalism and Japanese modernity. Cheltenham: Edward

Elgar.

Teubner G. 1998. Legal Irritants: Good Faith in British Law or How

Unifying Law Ends up in New Divergences. Modern Law Review 61: 11-

32 .

Upham FK. 1987. Law and Social Change in Postwar Japan.

Cambridge, Mass: Harvard University Press.

Vanoverbeke D. Maesschalck J. Nelken D. and Parmentier S. eds. 2014.

The Changing Role of Law in Japan. Cheltenham: Edward Elgar.

Verstappen J. 2014. Cultural obstacles to European legal integration:

Applying Hofstede’s Cultural Dimensions Theory. Maastricht European

private law Working Paper papers.ssrn.com, 2014/17 .

Vukovic D and Cvejic S. 2014. Legal culture in contemporary Serbia:

structural analysis of attitudes towards the rule of law. Annals fac. L.

Belgrade int'l ed. 52.

Webber, J. 2004. Culture, legal culture, and legal reasoning: A comment

on Nelken Australian Journal of Legal Philosophy 29: 27–36.

Whitman JQ. 2000. Enforcing Civility and Respect: Three Societies

The Yale Law Journal 109: 1279-1398.

Whitman JQ. 2003. Harsh Justice. Cambridge, Mass: Harvard University

39

Press.

Whitman, JQ. 2004a. A Simple Story. Rechtsgeschichte 4: 206.

Whitman JQ. 2004b. The Two Western Cultures of Privacy: Dignity

versus Liberty Yale Law Journal 113: 1151-1221.

Whitman JQ. 2005. Response to Garland. Punishment and Society 7:

389–396.

Whitman JQ. 2007. Consumerism versus Producerism: A Study in

Comparative Law Yale Law Journal 117: 340-406.

Winn JK. 1994. Relational Practices and the Marginalization of Law:

Informal Practices of Small Businesses in Taiwan Law and Society

Review 28: 193- 232.

World Bank. 2001. Legal Culture and Judicial Reform.

http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/Legal

CultureBrief.pdf Accessed june 27 2016.

Zedner L. 1995. In pursuit of the vernacular: Comparing law and order

discourse in Britain and Germany. Social & Legal Studies 4: 517-534.

Zimmermann A. 2008. The Politics of Lawlessness in Brazil - How

Brazilian Politics Overrides the Rule of Law. eLaw J. 15: 3.

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.

40

41