2 Int'l J. L. Context 1 (2006)

handle is hein.journals/injwcext2 and id is 1 raw text is: 

International Journal of Law in Context, 2,1 pp. i-i0 (2006) Cambridge University Press
DOI: 0.c017/SI7445523r600-117 Printed in the United Kingdom



Culture, comparison, community


Roger Cotterrell*
Queen  Mary  and Westfield College, University of London



    Abstract
    This article proposes a response to legal scholarship's recent concerns with the complexity of law's
    relations with culture, looked at from a sociolegal point of view. It argues that legal studies today must
    have a comparative dimension, and that they should contribute to an understanding oflaw in relation
    to culture, or as a cultural phenomenon. But there are problems with culture as a legal concept (or a
    social scientific one). Also, many long-established sociolegal ideas about 'law and society' are becoming
    obsolete. A way forward is to relate law to four pure types of community that interact in complex ways
    in social life and, together, embrace the various dimensions of culture. The article claims that a law-
    and-community approach to legal study clarifies law's relation to culture, and provides a framework
    for comparative studies of law.



i. Culture

What  can  an English legal scholar, with an almost entirely European social and legal experience,
hope to contribute to a realistic discussion of legal studies in a country with a profoundly different
culture - for example, India? The challenge is to try to find a way of bridging cultures through legal
and social theory, legal and sociological scholarship. It is also to find a way of talking about culture
that is neither vague and merely impressionistic (like a tourist), nor misleadingly dogmatic so that
complex  communal   ways  of life are labelled 'cultures' as if they were monolithic and uniform, and
irreducibly different from other cultures. On the one hand, there is a danger in using the concept of
culture in a way that assumes an inevitable similarity between people who are different in important
ways. On the other, the danger is in assuming an irreducible difference between the 'other' and 'us',
when  in fact much may be shared and bridges of understanding can be built that make culture highly
'porous' - open to cross-influence, mutual learning, recognition of commonalities, and inter-group
translation of experience, beliefs, aspirations and attachments.
    This article's aim is to outline a theoretical framework that might be helpful in addressing some
of the complexities of culture in social studies of law. It presents ideas about culture, comparison and
community   in law at a fairly high level of abstraction. But my hope is that the ideas are broad enough
and sensitive enough  to have some local resonance, and that they may be  criticised and tested to
explore their applicability for legal studies in specific contexts. Certainly, they are grounded in
traditions of social theory that are almost entirely western. Although the ideas in this article reflect a
strong interest in comparative legal studies and legal history, I know that they cannot entirely escape
the predominantly  English common   law experience that has shaped their author.
    All of us inhabit cultures that, in part, we are aware of. But, in part, insofar as culture forms us and
makes  us who we  are, we are not conscious of it. To understand culture it is necessary somehow to
step outside ourselves, observing ourselves participating in life, and up to a point this is possible.
Observation and participation cannot ultimately be separated. We necessarily observe the situation


*   This article is adapted from a paper given at the National Law School of India University, Bangalore, India on
    ii August 2005.

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