In my last post, it became evident that culture should play a role in comparative law research. Yet what exactly is legal culture? While the strong interrelationship between law and culture has been emphasized since Baron de Montesquieu published his De L’Esprit des Lois in 1758, the concept of legal culture is still unclear. Historically, the term “culture” has nationalistic connotations, mostly due to its use by German romanticism. Today, the term legal culture is often used to talk about the “living law” as opposed to the law in books. Frequently, lawyers refer to Western law as opposed to other legal cultures. In this context, legal culture serves as a general term to indicate law in action in a particular system or region. Seen in this way, however, legal culture does nothing to improve or extend the study of comparative law, but is just a vehicle to distinguish the West from the rest. Still, Csaba Varga employs the term legal culture in order to establish a new interdisciplinary area of research (he calls it comparative legal cultures) that intends to study legal systems not only from a legal stand point, but also from a sociological, philosophical, historical and anthropological perspective. According to Varga
“[…] the term ‘legal cultures’ […] stands for an operative and creative contribution, through social activity rooted in underlying social culture, to express how people experience legal phenomenon […], how and into what they form it through their co-operation, how in what way they conceptualise it, an in what spritit, frame and purpose they make it the subject of theoretical representation and information.” (Varga, p. 182).
In return, Patrick Glenn has pointedly criticized the use of the term legal culture in comparative law. Instead, Glenn prefers the term tradition which he defines as follows:
“A given tradition emerges as a loose conglomeration of data, organized around a basic theme or themes […].” (Glenn, p. 15)
Consequently, legal tradition is transmitted information pertaining to the concept and content of law. Legal traditions are explicitly border-less, meaning they extend beyond the conventional limits of legal systems. This is probably the key element that distinguishes legal traditions from the historic concept of legal cultures. And what are the implications of this dispute for comparative law? In practical terms, because legal culture is such a vague concept, authors should specify their individual definition of culture. More generally, the fact that terms like legal culture and legal tradition are extensively discussed in current comparative law literature shows the importance of legal pluralism for modern comparative law research.
- Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (2004).
- Jaakko Husa, Legal Culture vs. Legal Tradition – Different Epistemologies?, Maastricht European Private Law Institute Working Paper Series 2012/18, available here.
- Ralf Michaels, Legal Culture, available here.
- Csaba Varga, Legal Traditions? In Search for Families and Cultures of Law, 46 Acta Juridica Hungarica 177-197 (2005).