17 Ratio Juris 1 (2004)

handle is hein.journals/raju17 and id is 1 raw text is: 


Ratio Juris. Vol. 17 No. 1 March 2004 (1-14)


Law in Culture


ROGER COTTERRELL


Abstract. The relationship of law and culture has long been a concern of legal anthro-
pology and sociology of law. But it is recognised today as a central issue in many
different kinds of juristic inquiries. All these recent invocations of the concept of
culture indicate or imply problems at the boundaries of established thought about
either the nature of law or the values that law is thought to express or reflect. The
consequence is that legal theory must, it seems, now systematically take account of
the notion of culture. The present paper asks how this might best be done. I argue
that a concept of culture, as such, is of limited utility for legal theory because the
term culture embraces a too indefinite and disparate range of phenomena. But
legal theory needs conceptual resources to consider at a general level the relations
of law and culture. This paper suggests that these resources should include, above
all, a rigorous distinguishing of different abstract types of community. Legal theory
requires a sociologically-informed concept of community. What is encompassed by
the vague idea of culture is actually the content of different types of social relations
of community and the networks (combinations) in which they exist.


I. Intersections of Law and Culture
In what ways have the relations of law and culture become more prominent
in legal scholarship? This first section will sketch parameters of juristic
concern in this area by outlining six important foci of legal inquiry in which
culture is explicitly invoked and made central. Here the term is usually taken
to indicate collective beliefs, values, traditions, attachments, or outlooks.
These are assumed to exist in persistent but not necessarily unchanging
combinations, characteristic of particular social populations.
  (1) Developments in comparative law indicate one such focus. Compara-
tists have become increasingly obsessed by notions of 'legal culture'
(Ogus 2002, 419). As comparative legal study gains in importance as a prac-
tical matter in a world of globalisation and perceived cultural diversity,
the nature of comparative law as an enterprise is discussed widely (e.g.,
Legrand and Munday 2003; Harding and Oriicii 2002; Nelken and Feest
2001; Riles 2001; Glenn 2000). The question of how far law is rooted in,
and how far it can fly free of, culture becomes urgent. If comparative law
 Blackwell Publishing Ltd 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden 02148, USA.

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