This post gives a quick overview of comparative law and culture. An in-depth discussion of legal pluralism will be part of a later post.
The comparative legal cultures movement can be seen as the antidote to functionalism in comparative law. It’s underlying premise is that legal systems are not merely comprised of positive rules, but rely on a large cultural basis (also mentalité ).
How Does the Method of Comparative Legal Cultures Work?
According to this theory, legal systems have to be examined in their entirety drawing knowledge not only from law, but from history, anthropology, political science and social sciences. Hence, this method is very interdisciplinary. It is also very individualistic – there is no specific methodology of how to compare different systems. In fact, focus does not seem to be on comparison, rather on complete understanding of the various laws of the world. Consequently, the prevailing approach in comparative law of grouping legal systems into larger families seems to be impossible. Another area of dispute between mainstream comparative law and comparative legal cultures is the issue of growing convergence between common law and civil law.
Assessment of the Comparative Legal Cultures Research
Evidently, comparative legal culture research requires an in-depth knowledge of countries and their laws. Comparisons on a larger scale are hard to achieve, especially for a single researcher. The study of comparative legal cultures requires more of an interdisciplinary collaboration among academics from law, history, political science, and anthropology.
- Reza Banakar, Power, Culture and Method in Comparative Law, 5 INT’L L IN CONTEXT 69–85 (2009).
- Paul Schiff Berman, The Enduring Connections between Law and Culture, 57 AM. J. COMP. L. 249–257 (2009).
- Balázs Fekete, Cultural Comparative Law, in LEGAL AND POLITICAL THEORY IN THE POST-NATIONAL AGE 40-51 (Péter Cserne & Miklós Könczöl, eds., 2011).
- Csaba Varga, COMPARATIVE LEGAL CULTURES: ON TRADITIONS CLASSIFIED, THEIR RAPPROCHEMENT AND TRANSFER, AND THE ANARCHY OF HYPER-RATIONALISM 2012.