To conclude this “chapter” on culture and tradition in comparative law, I would like to mention two forthcoming publications in this area.
On the legal culture side, David Nelken has a paper forthcoming in the Asian Journal on Law and Society on the concept of legal culture.
This paper addresses the controversial concept of legal culture. It first considers the different meanings of the term and the variety of debates in which it figures. It then goes on to consider difficulties in deciding the units to which the term legal culture is applied, and the problems in using the term in explanations. It concludes by examining the way assumptions about what gives legal culture its coherence have implications for explaining how and when it changes. In each section of the argument an attempt is also made to show the relevance of these questions for this journal as seen in the articles published in its first issue.
The paper can be downloaded here.
On the legal tradition side, Madeline Kochen has a book forthcoming on Organ Donation and the Divine Lien in Talmudic Law.
This book offers a new theory of property and distributive justice derived from Talmudic law, illustrated by a case study involving the sale of organs for transplant. Although organ donation did not exist in late antiquity, this book posits a new way, drawn from the Talmud, to conceive of this modern means of giving to others. Our common understanding of organ transfers as either a gift or sale is trapped in a dichotomy that is conceptually and philosophically limiting. Drawing on Maussian gift theory, this book suggests a different legal and cultural meaning for this property transfer. It introduces the concept of the “divine lien,” an obligation to others in need built into the definition of all property ownership. Rather than a gift or sale, organ transfer is shown to exemplify an owner’s voluntary recognition and fulfillment of this latent property obligation.
More details are available on the publisher’s website.