Legal Culture

Abstract

Legal culture is a concept first used by US legal historians in the mid-1980s. It appeared under the influence of the Critical Legal Studies movement, which outlined both the indeterminacy of law and its role in social change. Surprisingly, this concept has no equivalent in other legal historiographies. For instance, its French translation—culture juridique—only relates to the theoretical knowledge of professional lawyers. However, other historical traditions in Europe and Africa historicized the law in social context earlier, mostly under the influence of the cultural anthropology promoted by Clifford Geertz and others. Brazilian historians had long followed the fundamental work of Gilberto Freyre. Building on these various traditions, legal culture can be defined as a conception of justice and an understanding of legal institutions by individuals or groups that influence their actions. The study of legal culture is based on a wide array of sources, such as court records or notarial deeds, that give insight into a number of social practices legally shaped. Social actors elaborate legal strategies according to their legal culture; they engage in legal actions if they believe they can benefit, which further implies an awareness of an individual’s legal possibilities of action. Applied to early modern Atlantic history since the mid-1990s, this concept helps to explain the building of unfair legal systems based on slavery during the colonial era. Not only seen as an instrument for imposing colonial rule, it also explores the legitimation of social hierarchy by dominant groups or polities. It also helps to explain its acceptance by some actors placed in a subaltern position, as well as their resistance to it. People contest a social or political order when they believe they are entitled to a benefit, e.g., they sue to claim and secure their rights. Study of legal culture, rather than law, therefore gives insight into situations when non-elite individuals engage in legal actions to change their personal situation, e.g., obtaining official manumission. Finally, by considering courts as arenas of discussion of general values, it also gives historians a method of analysis for legal actions; single cases are episodes in general fights over principles that can eventually lead to collective changes, such as slavery abolition. Therefore, even if a clear definition of a legal culture (a consciousness? an awareness? a mentality?) is still under debate among scholars, this concept has already proven fruitful to uncover the complexities and contradictions of Atlantic early modern societies that were pluralistic at their core by looking at interactions between legal cultures. The choice of legal arenas (i.e., jurisdictional concurrence) and the repetition of similar legal conflicts make up a major line of inquiry in the construction of an interimperial order in the Atlantic during 17th and 18th centuries. In fact, it would be more effective to use the plural “legal cultures” as this concept is used at its best in narratives of conflicts and clashes between competing sets of values that can lead to normative and social changes. Because this field is too large and scattered to cover everything, this article is limited to the variety of definitions of legal culture in Atlantic social history.