Deficiencies of the Rule of Law and the Legal Culture, and Its relationship to Underdevelopment

Abstract

For many years research on development has been focused on complex economic models. However, the underdevelopment phenomenon entails important cultural aspects which have been barely explored. One of those aspects is the relationship between legal culture and the rule of law, and its effects on development. The aim of this article is to find evidence of the relationship between the lack of the binomial rule of law/legal culture and underdevelopment. The article states that legal culture and rule of law, as factors for development, are a binomial, meaning that, in the research of development/underdevelopment phenomenon, those factors are to be studied together. Rule of law, in terms of its relationship with development, should not be conceived as a mere formal expression of generalized submission to laws, including on the part of the organs of the State itself, but it should also be observed from a broader perspective. Hence its necessary connection with the legal culture, as the existence of these laws and the actual fact that people, generally, be conscious of them and their conduct be guided by them. The existence of the binomial rule of law/legal culture constitutes, in this way, a framework for the flourishing of development in a given region or country.

Perspectives of Legal Culture

“…Besides, legal culture is associated with another widely used concept, the rule of law. In that sense, legal culture is an indicator of the rule of law (Barzilai, 1997) or an inseparable component of a binominal rule of law/legal culture (Fonseca, 2015). These articles rarely emphasise the meaning or sense of legal culture.…”

“…In exceptional cases, the authors refer to Friedman's and Nelken's ideas of legal culture and what it ought to be. Thus, legal culture is defined as patterns of oriented social behaviour and attitudes towards legislation and law enforcement (Miller, 2011;Dias, 2016), or as a degree to which a community adopts the laws (Fonseca, 2015). Quite differently, in some articles, legal culture is equated with legal families or traditions and classified as the Continental law family and the Anglo-American common law family (Hytönen, 2016), or common law, civil law, andScandinavian law (DeMichele, 2014).…”