Using the Concept of Legal Culture

Abstract

Forthcoming in the Australian Journal of Legal Philosophy 2004 USING THE CONCEPT OF LEGAL CULTURE David Nelken * 1.The Meaning of Legal Culture Legal culture, in its most general sense, is one way of describing relatively stable patterns of legally oriented social behaviour and attitudes. The identifying elements of legal culture range from facts about institutions such as the number and role of lawyers or the ways judges are appointed and controlled, to various forms of behaviour such as litigation or prison rates, and, at the other extreme, more nebulous aspects of ideas, values, aspirations and mentalities. Like culture itself, legal culture is about who we are not just what we do. Enquiries into legal culture try to understand puzzling features of the role and the rule of law within given societies. Why do the UK and Denmark complain most about the imposition of EU law but then turn out to be the countries which have the best records of obedience? Conversely, why does Italy, whose public opinion is most in favour of Europe, have such a high rate of non compliance? Why does Holland, otherwise so similar, have such a low litigation rate compared to neighbouring Germany? Why in the United States and the UK does it often takes a sex scandal to create official interest in doing something about corruption, whereas in Latin countries it takes a major corruption scandal to excite interest in marital unfaithfulness!? Such contrasts can lead us to reconsider broader theoretical issues in the study of law and society. How does the importance of 'enforcement' as an aspect of law vary in different societies? What can be learned, and what is likely to be obscured, by defining 'law' in terms of litigation rates? How do shame and guilt cultures condition the boundaries of law and in what ways does law help shape those self -same boundaries? These few examples are enough to suggest that findings about legal culture can have both theoretical and policy implications. But there may even be more straightforwardly practical Distinguished Professor of Legal Institutions and Social Change, University of Macerata, Italy; Distinguished Research Professor of Law, Unversity of Wales Cardiff; and Visiting Professor of Law, LSE. This is a revised version of a paper that was presented as a keynote address to the Australian Association of Legal and Social Philosophy conference (July 18-20 2003). I should like to thank Professor Peter Crane and Professor Tom Campbell for their kind invitation, Professor Dimity Kingsford -Smith for graciously suggesting the idea, and Professor Jeremy Webber for his ‘reply’ to the paper.