Comparing legal cultures - student copy, by Joxerramon Bengoetxea


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Course teached by Joxerramon Bengoetxea and Heike Jung at the International Master's in Sociology of Law (2011-2012). International Institute for the Sociology of Law - Instituto Internacional de Sociología Jurídica, Oñati.

The purpose of this course is to introduce basic notions about law, legal thinking, the legal order and its sources, the legal professions and legal cultures. Some of the major debates in Comparative law will be dealt with - comparability, adaptation, transplants, influences, convergence, transitions. At the end of the intensive, one-week course each student should be able to make a presentation about their own legal culture
1. Introduction to Legal Cultures
Try to indentify what experiences you've had with the law, with the courts, and lawyers
The concept of law. The idea of a legal culture. Tradition, culture, family. Major Legal families in the World. Comparative Law, PLuralism and Anthropology.
Basque Legal Culture
2. Understanding a Foreign Legal Culture
Experiences: think of how difficult it seems to understand other legal cultures and other laws
3. Elements of a Legal Culture
Which would you say are the main elements of your legal culture and to what extent do they depend on or do they transcend the existing laws?
4. Social Systems of Order and Regulation
How is order maintained in society and what influence does this have on the dominant legal culture?
5. Varieties of Legal Cultures
Presentation and Discussion of our own Legal Cultures; each student will apply the notions discussed in the course to introduce the specific features of their own culture.

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  • Other ways to conceptualise this evolution from LP1 to LP 2, see Teubner, Rethinking LP, 13 Cardozo LR 1992: 1443, while in old pluralism the main institutional link was the legal formalization of diffuse social norms, the new LP is characterized by specialised institutions that bind law to a multitude of functional subsystems and formal organizations LP1 is: legalistic, it is a problem of State law’s recognition of subordinate normative orders like regional or corporate regimes Hierarchical; it identifies “legal levels” with a stratified structure of society institutionalist; LP 2 authors, Galanter, Sally Falk More, Snyder, Boaventura, Fitzpatrick, Griffiths, Henry- The new LP “juridifies” specialised discourses instead of diffuse social norms in the lifeworld of groups and communities
  • Brian Tamanaha: “ The monopolization of law by states in Western Europe reduced legal pluralism at home just as a new wave of legal pluralism was being produced elsewhere through colonization. Before moving to that discussion, it is pertinent to note that, while the focus herein has been on legal pluralism within medieval Europe, the phenomena just described were by no means limited to that context. Wherever there were movements of people, wherever there were empires, wherever religions spanned different language and cultural groups, wherever there was trade between different groups, or different groups lived side by side, it is inevitable that different bodies of law would operate or overlap within the same social field. Since these were common conditions, the kinds of legal pluralism that existed in medieval Europe no doubt existed elsewhere .”, St John’s University LEGAL STUDIES RESEARCH PAPER SERIES , 2008 , UNDERSTANDING LEGAL PLURALISM: PAST TO PRESENT, LOCAL TO GLOBAL
  • Tariq Modood Multiculturalism: not a minority problem, “ Notices of the death of multiculturalism began in Britain as far back as 1989, with the Salman Rushdie/Satanic Verses affair . It became clear that the minority-majority faultline was not going to be simply about colour racism, and that the definition of multiculturalism could not be confined to "steelbands, saris and samosas". For some liberals that meant an end to their support for the concept, as angry Muslims muscled in on something that was intended only for the likes of gay people or black youth. Their protests were supported as "right on", but a passionate religious identity was too multicultural for many. And yet, a decade on political multiculturalism flourished as Labour came to accept ethno-religious communitarianism as it had previously accepted other assertive identity movements. The sanctioning of faith schools, religious discrimination legislation, bringing Muslims into the networks of governance – all these happened well after the original "death of multiculturalism". Indeed, some occurred after 9/11 and 7/7 , events that were also meant to have killed it. One of the very last acts of New Labour was the passing of the Equality Act, which for the first time put the claims of the religion and belief strand on the same level as race. Initially, having religious equality legislation because of an EU directive, Labour left office with legislation that went well beyond anything found in Europe (on race as well as a religion) One of the reasons multiculturalism does not die despite having its last rites continually read out by successive government Ministers, like David Blunkett, Ruth Kelly and Hazel Blears, is that there are very few policies at stake. This is clear from David Cameron's speech , which despite its emphatic rhetoric has very little practical content. After all, many worry about residential segregation and inward-looking communities. But population distribution could only be achieved by, to coin a phrase, muscular illiberalism. Residential concentrations result more from fear of racism and "white flight" than self-ghettoisation. Research shows that all minorities – including Muslims – want to live in mixed neighbourhoods, and ghettos are created by those who move out. It is individual or institutional choices, then, that create outcomes – multiculturalist or otherwise. Schools that choose their pupils, like faith schools, are less ethnically mixed than where pupils are allocated places by local authorities. The expansion of faith schools and indeed the "big society" concept in general – in so far as it hands over resources and decision-making to neighbourhoods, communities, charities and organised religion – should see the development, not the decline, of ethno-religious communitarianism. Unlike Cameron I call that "multiculturalism" and I am in favour of it, with certain conditions. One is that it must be within a context of robust individual rights. Society cannot be reduced to individuals, and so integration must be about bringing new communities, and not just new individuals, into relations of equal respect. This means challenging racism and Islamophobia and so on, not by denying that there are groups in society but by developing positive group identities and adapting customs and institutions that enable that. Equally importantly, we must not take for granted what we have in common, but work hard to ensure that all citizens recognise themselves in our shared concept of citizenship – imaginatively shaped by our sense of who we are, where we are coming from and where we are going. An out-of-date national story, for example, alienates new communities, who want to be written into the narrative backwards as well as forward. Multiculturalism is incomplete and one-sided without a continual remaking of national identity. This aspect has been understated, and so the inattentive assume that multiculturalism is all about emphasising difference and separatism. In fact it's about creating a new, ongoing "We" out of all the little, medium-sized and large platoons that make up the country. In Britain we have made some progress. If this does not seem so, it is because of Britain's understated and misstated national identity, which goes back to the contingencies of the union and running an empire. Even today ethnic minorities are more likely than white people to say they are British. It is white reticence, not minority separatism, that is an obstacle to an inclusive national identity; without overcoming this, multicultural nation-building is difficult
  • the immense difference in the interpretation of what is meant by that separation of powers which Montesquieu did so much to promote is today one of the elements that determine the line between the use and the misuse of the comparative method
  • Comparing legal cultures - student copy, by Joxerramon Bengoetxea

    1. 1. Comparing legal cultures An introduction to the main issues by Joxerramon Bengoetxea
    2. 2. Day One – Plan for the course – reading assignments
    3. 3. Day One – introducing and comparing legal cultures - examples <ul><li>The day in the news – </li></ul><ul><li>Kissing in india </li></ul><ul><li>Abortion in Poland </li></ul><ul><li>Muslim courts in the UK </li></ul><ul><li>US judicial influence </li></ul><ul><li>Regulating the system </li></ul><ul><li>US and rule of law </li></ul><ul><li>Jurors and technology </li></ul>
    4. 4. Day One – main issues <ul><li>Concept of culture – vague, polysemic </li></ul><ul><li>Culture and society, law, religion, politics </li></ul><ul><li>Elements: values, norms, institutions, artifacts-material, forms of life, symbols </li></ul><ul><li>(legal) Cultures and subcultures; </li></ul><ul><li>Legal culture not the same as law – law as doctrine, law as social practice, law as ideology </li></ul><ul><li>Law: institutional normative order – law as interpretive </li></ul><ul><li>Comparing legal cultures not the same as comparative law – related disciplines: legal tradition, legal theory and philosophy, sociology of law </li></ul>
    5. 5. The Concept of culture The word culture, from the Latin colo, -ere, &quot;to cultivate&quot;, generally refers to patterns of human activity and the symbolic structures that give such activity significance. Culture has been called &quot;the way of life for an entire society.&quot; As such, it includes codes of manners, dress, language, religion , rituals , norms of behavior and systems of belief A common way of understanding culture sees it as consisting of four elements that are &quot;passed on from generation to generation by learning alone&quot;: 1 values comprise ideas about what in life seems important. They guide the rest of the cultur 2 norms consist of expectations of how people will behave in various situations. Each culture has methods, called sanctions , of enforcing its norms. Sanctions vary with the importance of the norm; norms that a society enforces formally have the status of laws 3 institutions are the structures of a society within which values and norms are transmitted 4 artifacts . . . —things, or aspects of material culture—derive from a culture's values and norms . (from Wiki)
    6. 6. Subcultures Large societies often have subcultures , or groups of people with distinct sets of behavior and beliefs that differentiate them from a larger culture of which they are a part. The subculture may be distinctive because of the age of its members, or by their race , ethnicity , class or gender . The qualities that determine a subculture as distinct may be aesthetic , religious , occupational , political , sexual or a combination of these factors. But is subculture a value-loaded concept? Even if it is neutral, is it useful at all? Culture change is complex and has far-ranging effects. Sociologists and anthropologists believe that a holistic approach to the study of cultures and their environments is needed to understand all of the various aspects of change. Human existence may best be looked at as a &quot;multifaceted whole.&quot; Only from this vantage can one grasp the realities of culture change. Culture and Symbols Symbols make culture possible, reproducible and readable. They are the &quot;webs of significance&quot; , they give regularity, unity and systematicity to the practices of a group. Geertz: C is (1) a system of symbols (2) reinforced by ceremonial action which acts (3) to establish powerful, pervasive and long-lasting moods and motivations in men.
    7. 7. Main Issues in comparing legal cultures- contd <ul><li>Concept of law – Hart - concept of norms – social norms </li></ul><ul><li>Pluralism and legal cultures </li></ul><ul><li>Law in the heads, law in the books, law as institutions, law in action (Blankenburg) </li></ul><ul><li>Internal and external legal culture (Friedman) </li></ul><ul><li>Culture and the legal professions </li></ul><ul><li>Form (procedure) and substance </li></ul>
    8. 8. Main issues cont.d – methodological issues <ul><li>Legal culture as the context of explanation and the object of explanation – circularity </li></ul><ul><li>Understanding a foreign legal culture – legal anthropology </li></ul><ul><li>Law and the (non-law) normative in other cultures and societies </li></ul><ul><li>E.g. soft law and governance and other forms of regulation, deregulation </li></ul>
    9. 9. Main issues in Comparing legal cultures cont.d Trends and dynamics <ul><li>Path dependency and tradition </li></ul><ul><li>Diffusion, transplants </li></ul><ul><li>Globalisation; historical waves of globalisation influencing legal cultures: Roman Law, Code Napoleon, Law and Order, HR, Financial crisis </li></ul><ul><li>Convergence: voluntary or imposed? </li></ul><ul><li>The global trends: transnational business, the neoliberal order, the European global lawyer, altermondialism resistance and alternative </li></ul>
    10. 10. The whole and the parts in Legal Culture <ul><li>The elements or the Whole – understanding a whole legal culture or only (some of) its elements. </li></ul><ul><li>The elements are a complex set of layers: the Gessner line </li></ul><ul><ul><li>The sources: The legal norms, (the core box) </li></ul></ul><ul><ul><li>The court decisions and dogmatics, This is already reconstructed </li></ul></ul><ul><ul><li>The institutional contexts: the judicial system and other institutional actors, </li></ul></ul><ul><ul><li>The non-institutional context and actors: lawyers (???), citizens, business (private interests) </li></ul></ul><ul><ul><li>But also the other approaches : </li></ul></ul><ul><ul><li>5. the litigation rates and other indicators of DR and of governance; (this is really a different question) </li></ul></ul><ul><ul><li>6. the legal theories and legal philosophies, </li></ul></ul><ul><ul><li>7. scientific explanations and knowledge and </li></ul></ul><ul><ul><li>8. social engineering assumptions about law, regulation and adjudication </li></ul></ul><ul><ul><li>The comparative and historical dimensions apply at all levels </li></ul></ul>
    11. 11. Day Two - Legal Pluralisms <ul><li>World-wide phenomena: pluralism, globalisation, transplants, translations, loans; </li></ul><ul><li>What is the relation between legal pluralism and legal culture? (plurality of legal cultures) </li></ul><ul><li>major trends: 1. globalisation and domination vs resistance and transnational vs local standards; 2. formalism (hard law) and fragmentation; soft instruments; this takes us to Dispute resolution and regulation (policy-making, policy mix, reg and dereg…) </li></ul><ul><li>The “foreign” legal culture might be next door!!! Plurality and pluralism, description v ideology </li></ul>
    12. 12. Galanter and Trujillo: Plurality of Pluralism <ul><li>Definition </li></ul><ul><li>Legal pluralism is opposed to what…? </li></ul><ul><li>3 types: </li></ul><ul><ul><li>LP 1 – ethno – examples discuss </li></ul></ul><ul><ul><li>LP 2 – social – examples discuss </li></ul></ul><ul><ul><li>LP 3 – techno, process (supply-side) examples? </li></ul></ul><ul><li>3 variables: </li></ul><ul><ul><ul><li>State </li></ul></ul></ul><ul><ul><ul><li>subject </li></ul></ul></ul><ul><ul><ul><li>Group (ethnic / multiple belongings / providers) </li></ul></ul></ul><ul><li>Where is the state? </li></ul>
    13. 13. Galanter-Trujillo cont <ul><li>Private DR providers – high-skilled professionals? </li></ul><ul><li>One-shotter v repeat player </li></ul><ul><li>Disputants from different cultures </li></ul><ul><li>Empowerment (values: participation, consensus) </li></ul><ul><li>Private and confidential procedures </li></ul><ul><li>Network of comprehensive justice centers? – to each problem, one DR option – parties required to participate </li></ul><ul><li>What do you make of the example of Pequots? </li></ul><ul><li>Do you know any relevant examples? </li></ul><ul><li>critique </li></ul>
    14. 14. Plurality and pluralism <ul><li>How to define legal pluralism? More than one law in one society? - implications </li></ul><ul><li>What is law? – “institutional normative order” (MacCormick), custom v customary law, principles and authority </li></ul><ul><li>Plurality of norm systems and plurality of DR systems – competing v coordinated / plurality v pluralism / monism pluralism v dualism; </li></ul><ul><li>context of LP in Europe: history, colonial, postcolonial, the state and the supranational, infranational - the issue of constitutional pluralism - Sources of plurality in contemporary societies e.g. Cultural, religious, ethnic, social plurality and law - Is plurality the “normal” state of affairs? </li></ul><ul><li>Multicultural societies v multiculturalism; some models: integration by accommodation, integration by assimilation, civic multiculturalism, see Tariq Modood Guardian 7-02-2011 </li></ul>
    15. 15. Howes: “Culture in the domains of law” ( Law in the Domains of culture , Sarat Kearns 1998) <ul><li>Cross-cultural jurisprudence (multicultural J). Culture in the courts and in legal reasoning, evidence, etc, see also Foblets, Shah, </li></ul><ul><li>Cultural defense; formal cultural defense (Renteln) </li></ul><ul><li>http :// / news -4421- Lorraine%20Mbulawa%20the%20law%20and%20spirits / news.aspx </li></ul><ul><li>The maximum accommodation principle: dress, treatment of animals, honor killings – moderate v radical relativism? Accommodation and Canada, Bouchard-Taylor Commission, Management of diversity; cultural diversity </li></ul><ul><li>From evolutionary models to sensitivity toward distinctness to reflexivity </li></ul><ul><li>Limit: physical integrity, universal values? </li></ul><ul><li>Weak legal pluralism </li></ul><ul><li>Culture and iconography </li></ul>
    16. 16. Normative approaches to LP at the supra- and international sphere (Mireille Delmas Marty, The Imaginative Forces of Law) <ul><li>Ethical internationalization (universalism) postulates active state support whereas economic globalization (market-driven society) results in state inaction and inequality; international norms are being negotiated by governments, transnational norms are being conceived of and applied by the actors themselves and supranational norms are being monitored by judicial or quasi-judicial bodies  2 alleys for research and action: </li></ul><ul><li>A pluralist internazionalization which incorporates systemic diversity, looking for a common grammar that will enable systems to either be rendered compatible (harmonized) or truly fused (hybridized), “our objective must be to shape the plurality of systems into an “ordered pluralism” </li></ul><ul><li>Make indeterminacy, fuzziness and discontinuity a component of legal reasoning and legal thinking e.g. margin of appreciation, mutual recognition, subsidiarity, discontinuity of norms, of power, of values (law’s relativism v universalism of reason) where crimes and risks become global the responses must be global and cannot be left to national law alone. Universal law is now becoming normative, is reason becoming relative? </li></ul>
    17. 17. 3. from pluralism to global trends <ul><li>Disintegration of tradition; Weber: modern economic life has destroyed those other associations which used to be the bearers of law and thus of legal guarantees (of legal enforcement and protection of property). This has been the result of the development of the market which requires a LS calculable according to rational rules </li></ul><ul><li>But is this correct even for Western economies? Power and trust behind all legal phenomena? There is a social organisation of distrust to create legal certainty (Shapiro) but institutional trust as a prerequisite for stable Democracies (Offe) </li></ul><ul><li>Historical waves of globalisation influencing legal culture: Roman Law, Gothic-invasions, Bologna and the rediscovery, Renaissance and nation-states, Code Napoleon, BGB, Constitutionalism-HR-rule of law, Trade and Law and the new lex mercatoria, Fight against terrorism and punitive trends (Garland’s Culture of Control ) </li></ul><ul><li>Each wave comes with new forms of production, new social structures, new technologies – globalisation trend, not completely new, but perhaps faster – how legal cultures interact? </li></ul>
    18. 18. Understanding a foreign culture – a frame of mind <ul><li>What are we comparing? What is larger, Legal culture , law or the Legal system? (Friedman) Cotterrell sees LC as the general environment the law, ideas, behaviours, attitudes BUT for Blankenburg, there is no LC outside the institutions. </li></ul><ul><li>Getting rid of our preconceptions; an intellectual approach but also an attitude. From sensitivity to other cultures to reflixivity of one’s own. But our own culture is marked by hybridity and creolization (Sally Engle Merry) </li></ul><ul><li>The internal point of view – H.L.A. Hart vs going native? </li></ul><ul><li>Very complex relation between view er and view ed </li></ul><ul><li>Learning a second language : at what level Nelken: there is much to be gained by inserting an investigation of legal consciousness into the larger framework of inquiries into LC </li></ul><ul><li>Risk that the foreign observer recognizes normative orders as functionally equivalent to what they know from their own LS; risk of overemphasizing the transplant? or the distinctive. </li></ul>
    19. 19. Kahn-Freund, Uses and Misuses of Comparative Law (as instrumental) <ul><li>Not as a tool of research or educ but reform </li></ul><ul><li>The debate between Watson (transplants anywhere, little innovation) and Legrand (transplants impossible) </li></ul><ul><li>Fact: foreign influences, law-makers looking abroad,reacting to social change or provoking it </li></ul><ul><li>Uses: unification of law globally, e.g. EC </li></ul><ul><li>Transplants to bring about social change </li></ul><ul><li>Montesquieu quote and list of factors, political factors gaining importance to explain resistance v convergence factors, East v West, separation of P, majoritarian v constitutional democracy, role of organized interests in the making/maintenance of legal institutions </li></ul><ul><li>3 examples, marriage (and family) law, law of procedure and of evidence, industrial relations esp collective bargaining, closed shop, TTUU, strikes (importance of traditions, or path-dependency) v contract and commercial law (see also discussion in Twining, p, 29, the metaphor of a transplant of a kidney or a carburator) </li></ul>
    20. 20. Twining Diffusion of Law <ul><li>What is the author trying to do? A new socio-legal field? </li></ul><ul><li>Legal systems and legal traditions have interacted throughout history. Indeed isolation has been quite exceptional, but is this overstated? Some strategies have emphasized isolation; others hybridity (Japan, Turkey), others are forced into isolation </li></ul><ul><li>The international dimension of legal culture constitutes one of the contexts in which legal change occurs; two major trends </li></ul><ul><ul><li>Landmarks in the study of diffusion: reception studies; colonization importation and imposition (legal pluralism; L&D), voluntary receptions; transplant thesis, law reform in Eur integration, structural adjustment programs in developing C; reconstruction in countires in transition, post-conflict reconstruction </li></ul></ul><ul><ul><li>More detailed studies of the pathways and processes of diffusion of particular products, techniques or ideas </li></ul></ul>
    21. 21. Twining cont <ul><li>A map to identify the difficulties </li></ul><ul><li>A reasonable cosmopolitan discipline of law goes beyond municipal law of nation-states and PIL to reach supra-state, religious law, non-state law, soft law </li></ul><ul><li>State legal pluralism ? p. 12, normative and legal pluralism? p.14 </li></ul><ul><li>Definition of legal order in note 22 </li></ul><ul><li>P. 21-22 e) any 2legal” phenomena or ideas can be the objects of diffusion…or even principles </li></ul><ul><li>The Red Book (ft 36) </li></ul><ul><li>(f) Did you bring your law with you as students </li></ul><ul><li>Ft 40: Discuss Glenn: does recption imply adherence? </li></ul><ul><li>(i) Latour: “no transportation without transformation”, mediation by local actors – Frank Lloyd Wright’s house </li></ul><ul><li>(l) p. 31-32; audit culture in law reform v transitional justice studies: “the assumptions underlying these measures tend to be technocratic, formalist and strongly instrumentalist, paying scant regard to culture, context, and tradition” (V Taylor and T Halliday) </li></ul>
    22. 22. TRANSPLANTS- imports and exports <ul><li>Challenge of transnational developments and politics of global capitalism; who sets the trend, who exports what in legal thinking </li></ul><ul><li>What is the appropriate unit of legal culture? The nation-state; a local jurisdiction? The families of law? </li></ul><ul><li>suggestion-proposal: use transplant for concrete specific norms, procedures or institutions, use “diffusion” for the broader interactions between laws (legal cultures) </li></ul><ul><li>Officials use foreign law to bring about change, not to preserve existing society (instrumental use of borrowed institutions) </li></ul><ul><li>Colonialism and imposed legal transfers; also the case in occupation or in conditioned loans for projects of trade, aid from World financial institutions (corporate governance, audit culture?) </li></ul><ul><li>Industrial property, antitrust, But transplants vs path dependency </li></ul><ul><li>Is convergence inevitable? Friedman: we are moving towards a global legal culture based around individualism, equality and Human Rights </li></ul><ul><li>The EU as a laboratory of legal transplants in all directions, esp by means of directives, but even more so for diffusion of laws and its contribution to creating a new European legal culture </li></ul>
    23. 23. 4. Beyond the national legal cultures – transnational legal phenomena TRNL <ul><li>General discussion re break up of nation-state model of legal culture, to what extent is it overstated? </li></ul><ul><li>Is the international level ultimately the same as the state (municipal) level? </li></ul><ul><li>Definition of law again: soft forms, normative and cognitive expectations </li></ul><ul><li>What are the phenomena going beyond, above, below, besides, between states </li></ul>
    24. 24. Volkmar Gessner, Globalization of enabling law <ul><li>Global Legal Culture? – in what sense? World society -Western Model? Is the EU really a test case of emerging supra-state LC? </li></ul><ul><li>Embeddedness everywhere? Granovetter 1985 examples. Compare: </li></ul><ul><ul><li>State law enbedded in a multitude of national LCs as are all other formal or informal normative systems v harmonisation efforts through international agreements and integrative influences of regionalization and globalization processes </li></ul></ul><ul><ul><li>Non-legal rules became semi-autonomous due to the fact that they were embedded in a legal system which was either tolerating or supressing them (LP2) v transformation of the state, from government to governance and legal pluralist approaches </li></ul></ul><ul><ul><li>Global business transactions embedded in a common culture shaped by economic rationality, English, contracts, arbitration, </li></ul></ul><ul><ul><li>From a socio-legal perspective economic behaviour is embedded in social structures and social relations </li></ul></ul><ul><ul><li>Embeddedness of personal relations as an overlay in economic transactions v impersonal trust - reputation, principal/agent , </li></ul></ul>
    25. 25. Gessner-2 a theory of everything – Globalisation, LC of lex mercatoria, social systems of production <ul><li>How are Global business transactions regulated? A common culture shaped by 5 factors </li></ul><ul><li>Legal cultures differ on how Legal certainty, exchanges are secured 4 variables: legal provisions, merchant’s rules, contracts by law firms, relational contracts based on trust –guanxi? </li></ul><ul><li>Modes of coordination: horizontal (interest) v vertical (obligations) and regulatory system – networks and associations </li></ul><ul><li>2 functions of law: regulating v enabling (enabling infrastructures, importance of civil cases, but also by IIOO like UNCITRAL, WB, IMF, EU) alternatives to enabling infrastructures: lex mercatoria or self-regulation by law firms, universalistic rules like reciprocity or generalized morality??? </li></ul><ul><li>2 variables when comp state v private structures enabling cross-border economic change:Trust and power,(Multinationals); no law? </li></ul><ul><li>A high level of trust among competing economic actors / existence of a communitarian structure are necessary for the emergence of succesful and felxible social systems of production </li></ul><ul><li>Does the economy regulate itself, is there an invisible hand; where is the law? Law at the background? </li></ul><ul><li>Impersonal trust, a complex social achievement absent in most parts of the W, constructed in the level of societies, law not a condition </li></ul>
    26. 26. Lex mercatoria (see <ul><li>Origin in Northern Italy in late Middle Ages, decline in the course of nation-building and codification. Special development in the London Commercial Court </li></ul><ul><li>The context is autonomy of actors in international trade compared with state intervention in other areas. New quest for certainty; solutions sought in hybrid mix of state regulation, international regulation and self-regulation </li></ul><ul><li>Incoterms, Uniform rules, IChamber C, Hague Rules, Unidroit; UN organizations have stepped in with International Conventions (e.g. sale of goods) </li></ul><ul><li>Autonomous rules; special drafting of contracts, practice of international law firms in standardising contracts and in negotiation often taking account of cultural differences </li></ul><ul><li>Arbitration and problems of enforcement </li></ul><ul><li>Globalisation phenomenon. This responds to a phenomenon of enabling law (Gessner) through unification of contract law, insolvency law, property law, tort law, company law or civil procedure. Differences in regulation and divergencies in state laws are supposed to reduce calculability and increase risk </li></ul><ul><li>There is a fight between supreme courts and arbitration courts and legal theory, whilst economic actors try to escape from state law, first avoiding courts in favor of arbitration and then shopping for the best jurisdiction </li></ul><ul><li>Global business is predominantly based either on power or personal trust </li></ul><ul><li>The Study Group on a European Civil Code is a network of academics, from across the EU, conducting comparative law research in private law in the various legal jurisdictions of the Member States. It aims to produce a codified set of Principles of European Law for the law of obligations and core aspects of the law of property. </li></ul>
    27. 27. Cotterrell, spectres of TransNationalism <ul><li>Theoretical implications – rethink law and society, even legal theory </li></ul><ul><li>P. 3. Western lawyers’ typical modern view of law in general: state-centered, monistic, law as autonomous normative order and science; internal/external; impacts on society. V Ehrlich’s subversive ways </li></ul><ul><li>The plurality of legal pluralism LP: intra-state LP or multiculturalism, State LP or polycentricity, transnational LP, interstate LP (what is this? Extraterritoriality? Export? Transplants?  a regulatory continuum or spectrum? Regulatory conversations bwn intersecting legitimacy communities; a normative network of interlegality </li></ul><ul><li>The legal future is one of increasing displacement of traditional state-centeres, positivist legal understandings  can legal sociology explain and interpret this changing regulatory terrain? Disturbing spectre : good empirical research but the past – law and state- weighing too much to renew itself in the face of legal TRNL </li></ul><ul><li>Discuss the general hypotheses about states subject to TRNL influences </li></ul>
    28. 28. Spectres cont, law, society and theory in flux <ul><li>Legal instrumentalism: law is the state’s key regulatory instrument; but the ‘law’ side of ‘law and society’ is in flux. Law  regulatory continuum </li></ul><ul><li>convergence thinking - So too is the ‘society’ side –v, Fukuyama’s end of history, risk of thinking one’s is the truly convergent vision, one-size fits all; society  the social goes beyond politically organised society of natiostates </li></ul><ul><li>Interest analysis Pound - law has reduced liberalism to ‘rule-based individualism’ and ‘interest politicsCulture a great diversity of networks of social relations – kind of useful tools Simmel p. 14, Gurvitch, Weber, Scott Veitch, p. 15-6,’ </li></ul><ul><li>Theory also in flux, no static views, ideas of LP; Rawls v Hardt and Negri’s Empire v Schmitt, nomos of the Earth – ratio and voluntas </li></ul><ul><li>Wishful thinking in Cotterrell’s constructive subversion? Is this useful? </li></ul>
    29. 29. What alternatives to Legal culture? D. Nelken, Rethinking Legal Culture <ul><li>Many studies can be relevant to legal culture even without using this term. Many studies use the term but contribute little. </li></ul><ul><li>Living Law (Ehrlich) - Law in Action </li></ul><ul><li>Legal Tradition / Legal Ideology / Legal fields / Legal Styles / Path dependency </li></ul><ul><li>Internal LC: legal mentalities / epistemes, formants </li></ul><ul><li>Even more provocative: autopoiesis and systems theory, Law and Society, Sociologies of Law? </li></ul><ul><li>Elements: legal system, legal process, legal institutions, actors, rules, procedures, practices with reference to their philosophical, historical or social context </li></ul>
    30. 30. Nelken – Italian delays; injuries and compensation in N Thailand; LC can help make comparisons of LSs more sociologically meaningful – cultural and structural factors interact <ul><li>Structure-infrastructure </li></ul><ul><li>Facts </li></ul><ul><li>Number of lawyers </li></ul><ul><li>Role of lawyers </li></ul><ul><li>Number of courts/judges </li></ul><ul><li>Methods of career access </li></ul><ul><li>Litigation rates </li></ul><ul><li>Prison rates </li></ul><ul><li>… </li></ul><ul><li>Culture </li></ul><ul><li>Ideas, values </li></ul><ul><li>Aspirations, principles </li></ul><ul><li>Mentalities, consciousness </li></ul><ul><li>Beliefs </li></ul><ul><li>Attitudes, practices, </li></ul><ul><li>habit </li></ul>
    31. 31. 5. Round up Legal Culture <ul><li>Friedman: LC; what people (Int/Ext) think about law, lawyers, and the legal order, it means ideas, attitudes, opinions and expectations with regard to the LS” The term LC tends to be applied both to elements (variables) within a society and to whole societies (aggregates)  it ends up as an explanation (method rather than object of enquiry), LC as the cause and the result,, the effect of our descriptions </li></ul><ul><li>Demand for law not LC but legal consciousness! P. 217 </li></ul><ul><li>We cannot take for granted that rules and institutions are transplantable (using a pattern of law outside the environment of its origin) Knowledge of the foreign law is not enough, also of its social, and above all its political context </li></ul><ul><li>Legal culture and pluralism; complex relationship – a pluralistic legal culture? Reasonable accommodation bwn relativism and assimilation </li></ul><ul><ul><ul><li>Internally within one state/nation </li></ul></ul></ul><ul><ul><ul><li>internationally </li></ul></ul></ul>