Using the Concept of Legal Culture

Abstract

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

Comparative Legal Research and Legal Culture: Facts, Approaches, and Values

“…For Webber (2004, p. 28), too, "legal culture risks being a superficially attractive but ultimately obfuscating concept, insisting upon interdependency but then cloaking that interdependency under the rubric of a single concept, doing nothing to tease out the specific relations of cause and effect within any social field." If we were to ask why Italy suffers such long court delays, it would indeed be circular to attribute this to legal culture if delay was itself one of its constituent features (Nelken 2004). How can this danger be avoided?…”

“…Why do the United Kingdom and Denmark complain most about the imposition of EU law but then turn out to be the countries that have the best records of obedience (Nelken 2004)? If Japan as a society tends to make relatively low use of law to resolve conflicts, why does law play such an important role in cases involving compensation for contaminated blood, the banning of smoking in public, or the resolution of trade disputes over tuna catches (Feldman 1997;2006a,b)?…”

“…Thus, we can set out to explain how Italian court delays are linked to a host of specific legal, social, economic, and political features of the society, as well to the efforts to remedy them through appeals to the European Court of Human Rights (Nelken 2004). These sort of enquiries into comparative legal culture explore such questions as why the US criminal justice system is so harsh (Whitman 2003), why there is so much difference between the effectiveness of the higher courts in India and the inadequate performance of those lower down (Galanter 2009), and why reckless driving is so common in Iran (Banakar 2015).…”

Mobilizing European law

“…For example, Marlene Wind (2010) has argued that a preference for majoritarian democracy and the lack of a tradition of judicial review explains the reluctance of Scandinavian judges to fully endorse European law. Legal culture, or culturally shared values and attitudes towards law and legal procedures (Nelken 2004), is not just shared among the judiciary, but also among the wider public. Based on survey data, James Gibson and Gregory Caldeira (1996) Methodologically, empirical research on the varying mobilization of EU law across national legal systems has largely been based on data relating to national judges' use of the preliminary reference procedure (Mayoral 2016).…”

Contextualisation of policy and law in sustainable urban development

“…Second, the discussions and analyses in the remainder of this paper are influenced by the Dutch background of the authors and their thorough knowledge of Dutch planning practices (but not exclusively). The Netherlands has a distinct planning culture (de Vries 2015) and legal culture (Nelken 2004;Salet 2002). For example, as a member of the 'civil law family', legal practices are different from those in, for example, common law countries such as the United Kingdom and the United States and its legal culture is known for the availability of alternative ways of dealing with disputes in order to reduce the high litigation rate (Nelken 2004).…”