When Law Became Cultivated: ‘European Legal Culture’ between Kultur and Civilization

Abstract

In this contribution, I invite the reader to approach the concept of ‘European legal culture’ from a historical perspective. Such an approach is helpful in two ways: first, it helps to attune one’s ear to the shades of meaning of ‘culture’ and to enhance awareness of the fact that ‘legal culture’ may have a different ring in different legal traditions. Second, as we shall see, it is the discourse on ‘legal culture’ itself, and especially the discourse on ‘European legal culture’, that seeks historical legitimacy by cultivating foundational narratives, invoking, in particular, the writings of the German Historical School and its most well-known proponent, Friedrich Carl von Savigny. I will present ‘snapshots’ of some of the foundational moments in the career of the concept of ‘legal culture’, and then, after a short comparison with contemporary English usage, set out to inquire which role ‘legal culture’ may be said to play in Savigny’s famous manifesto, Vom Beruf unserer Zeit fur Gesetzgebung und Rechtswissenschaft (Of the Vocation of our Age for Legislation and Legal Science, written in 1814). I want to suggest that re-reading Savigny’s text with the historical semantics of ‘culture’ between the French ‘civilisation’ and the German ‘Kultur’ in mind will help us to see more clearly some aspects of the text that are at times obscured in its ‘culturist’ readings that are too eager to find a romantic conception ‘Volksgeistlehre’ in Savigny’s work. These often neglected aspects might hint to an openness toward the possibility of thinking a legal culture beyond the nation state, and might give us, perhaps counterintuitively, some useful cues for a reflection on possible theoretical approaches to a ‘European legal culture’.