As discussed in an earlier post, comparative lawyers like to group legal systems in order to facilitate the comparative task. Traditionally, comparative law used the concept of legal families in order to cluster the legal systems of the world, mostly into simplified groups like common law countries and civil law countries. This method of classification has long been criticized as too simplistic and too Western. In particular, critics have pointed out that aspects of legal culture or tradition are not adequately represented in the conventional legal families.
Patrick Glenn therefore introduces a new system of classification based on his concept of legal tradition. Looking at the way legal knowledge is transferred from the past to the present, he distinguishes seven legal traditions of the world: (1) Chthonic legal tradition; (2) Talmudic legal tradition; (3) Civil law tradition; (4) Islamic law tradition; (5) Common law tradition; (6) Hindu legal tradition; (7) Asian legal tradition.
Csaba Varga, for his part, stresses legal variability. In other terms, comparative law and cultures is interested in the question of how legal systems can arrive at different solutions for the same legal problem. Accordingly, on the one hand, the clustering of legal systems into legal families (or traditions) based on their historical roots does not do justice to the diversity of laws. On the other hand, however, different laws can be part of the same legal culture. Consequently, some kind of clustering does also take place under Varga’s approach – only that the classification seems to be sociological/anthropological (based on common – present – social behavior) rather than historical (based on a common past).
- PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD (2004).
- Csaba Varga, COMPARATIVE LEGAL CULTURES: ON TRADITIONS CLASSIFIED, THEIR RAPPROCHEMENT AND TRANSFER, AND THE ANARCHY OF HYPER-RATIONALISM 2012.
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).
The connection between legal language and culture can be best seen in post-colonial settings. In particular, the respect for indigenous language and tradition is important when drafting treaties between Indian tribes and governments. Some of these treaties try to integrate the indigenous while others establish institutions intended to translate between the colonial and the indigenous system. Evidently, such interactions between two systems are problematic in terms of socio-legal communication.
In his article, ‘‘What Are You Going to Do with the Village’s Knowledge?’’ Talking Tradition, Talking Law in Hopi Tribal Court, Justin B. Richland compellingly describes the difficulty of applying Anglo-American legal principles to Hopi Indian traditions and customs. Richland presents a property dispute among members of a Hopi village. The dispute took place in front of a Hopi judge sitting as Hopi Tribal Court. This kind of court proceeding is set to accommodate Anglo-American procedure with Hopi customs and traditions. It is exactly such type of interaction between two fundamentally different legal systems that poses socio-legal challenges for all parties involved. In this particular case, the judge forwent a cross-examination and took questioning of the witnesses into his own hand. To prevent any future argument that he was partial, the judge tried to remain as abstract as possible and demanded that the witnesses only state general principles of village customs and traditions. Historically, however, such customs and traditions are the reserved knowledge of a privileged part of the village population and are transferred among members much like personal property. Therefore, the resistance of the witnesses to testify on general principles of custom and tradition was vehement. Furthermore, as the witnesses represented village elders that possessed such privileged knowledge, they challenged the (external) judge’s power to decide the case. Instead, they saw the reason for their presence in helping to decide this particular property dispute. Evidently, given such conflicting conceptions, the hearing did not go at all smoothly.
This case is an excellent illustration of the difficult relationship between law and culture. While some still challenge the relevance of culture and tradition and focus exclusively on legal principles, such an approach is problematic, as the above-mentioned case shows. The question then is how these sometimes clashing concepts of law and culture can be best accommodated. An important goal would be the cultural awareness and the respect for culture among lawyers. For comparative law this means that comparatists should not only focus on the positive laws of different legal systems, but also on their traditions and customs.
Justin B. Richland, “What Are You Going to Do With the Village’s Knowledge?” Talking Law, Talking Tradition in Hopi Tribal Court, 39 Law & Soc Rev 235-272 (2005).