COMPARING LEGAL CULTURES by David Nelken (Editor). Hants, UK: Dartmouth Publishers, 1997. 266 pp. $68.95 Cloth. ISBN 1-85521-718-X.
Reviewed by Mary L. Volcansek, Department of Political Science, Florida
COMPARING LEGAL CULTURES is an edited collection that resulted from a conference held in Macerata, Italy, in 1994. Unlike so many works with their origins in conferences, this one holds together as a coherent whole. As Michael King notes as the beginning of his Chapter Seven, "comparing legal cultures can be fun," because it allows us to travel, learn languages, make new friends and experience foreign culinary delights." No comparative politics student would argue with that, nor with the Italian cuisine that was undoubtedly consumed at the Macerata gathering where this book took shape. Yet, few of us can articulate precisely what it is that we are experiencing when we are soaking up legal culture. That is what this book is about: the concept of legal culture, its definition, measurement and application. All who work in comparative judicial studies are familiar with the frequency with which the term legal culture is invoked, usually as the default explanation for what we cannot express otherwise. It arises frequently as both an independent and a dependent variable, and has been known to show up in an intervening capacity. Even so, it remains a concept that has generally eluded meaningful definition or measurement; when presumably measured, some of us question the appropriateness of the indicator chosen. Nelken and his associates analyze those difficulties from a legal sociology perspective, even though several of the contributors are political scientists.
The book benefits from a thoughtful organizational scheme. Part I includes eight chapters that address theoretical dimensions, and Part II presents five chapters in which applications of legal culture are presented. The first four chapters present two sets of point-counterpoint and frame the multiple problems that inhere in definition and application of the concept and clearly frame the questions.
Roger Cotterrell sets the agenda in Chapter One with a frontal attack on the varying ways that Lawrence Friedman has defined legal culture over three decades and demonstrates the amorphous quality with which it has been employed even by a single scholar. He then poses when the concept might, despite its problems, be useful. He settles on its desirability in setting up ideal types, such as those used by Mirjan Damaska in THE FACES OF JUSTICE AND STATE AUTHORITY for common law versus civil law. Their virtue, he asserts, lies in the recognition that they do not represent an empirical reality, but rather organize interpretation of it; it permits viewing legal culture as aggregates rather than as units.
Appropriately, Lawrence Friedman follows with a chapter replying to Cotterrell in which he argues the benefits of "lining up a range of phenomena into one very general category" in which "the parts can be crisper and brighter than the whole." The concept serves, he contends, as the "essential intervening variable" that is capable of explaining change or the lack thereof.
Next, Erhard Blankenburg proposes that civil litigation rates can serve as an indicator of legal culture, since some cultures exhibit a tendency toward litigation avoidance whereas others are litigation prone. He draws data from litigation prone nations (Austria, Belgium, and West Germany) and compares them with ones where litigation avoidance is the prevailing norm (Italy, Denmark, Netherlands, and Japan). The distinctions are then teased out through an in-depth comparison of the otherwise seemingly culturally similar nations, the Netherlands and West Germany. That comparison allows him to conclude that "'legal culture'" is as much the product of the system as it is its generator" and does not exist outside of legal institutions. Nelken then replies to Blankenburg, and his argument can be summarized as something like, you still haven't gotten around the culture versus structure confusion. "Blankenburg chooses to call all such institutional realities an aspect of legal culture," and Nelken continues, "rather than treat them as a competing explanation for legal behavior."
Without repeating the arguments presented in each of the thirteen chapters, you begin to get the idea. It is the thrust and parry that crystallizes the issues, but nonetheless fails to resolve them. The absence of resolution should not be read as failure, since the dilemmas became for me clearer as a consequence of reading these exchanges. That crisp give and take does not, unfortunately continue through the remainder of the book. Rather, what follows are further critiques of various conceptualizations of legal culture and then the proposed applications. The quality of the chapters is, as is almost always the case in collected volumes, uneven. Malcolm Feeley presents a useful survey of comparative legal analysis and concludes that the social scientists, both sociologists and political scientists, have not overcome the narrow descriptive, substantive and law reform focused work that the lawyers have. Despite some few interesting works, he concludes that comparative analysis that centers on legal culture as the unit of analysis has not gone very far and advocates a version of ethnographic work as a possible new approach. Rounding out the first part are chapters by Carlo Pennisi trying to separate internal and external legal culture phenomena, Michael King suggesting a theory of "autopoietic" (self-referential) systems, and Hanne Petersen offering the feminist and environmentalist critique of Western legal cultures.
Part II offers some interesting attempts to apply notions of legal culture. Maria Rosaria Ferrarese presents an Anglo-American common law versus continental civil law application of ideal types. From that, she characterizes the American variant of common law as entrepreneurial and driven by economic referents, as opposed to the continental, positive law driven by political considerations. Hers is an insightful work, as it Carlo Guarnieri's comparison of prosecutorial behavior between two similar nations, Italy and France. Legal culture retains some of its spongy qualities, being in Guarnieri's chapter as "a set of historically learned responses that discloses not only what is valued in a society but also how institutional problems will be framed and solutions envisaged." Even though the definition used still lacks precision, his comparisons clearly demonstrate that there is such an attribute as legal culture and, perhaps more importantly, makes the argument that it can only be found through comparison.
Part II concludes with two studies using Japan as a centerpiece, one by Setsuo Miyazawa and another by Eric Feldman. Both demonstrate the problems with comparisons, whether in the area of criminal law or of rights discourse. The final chapter is a historical study of the copyright law as its articulation in bilateral treaties between Britain and various continental countries in the middle of the nineteenth century have affected domestic British law.
In short, the collection has a little bit of something for (or from) everyone, but that is the definition of an edited volume. The strengths of the collection remain, however, more potent than the sum of the individual contributions. And, that is also the purpose of a collection of essays. This book has summed up and then illustrated clearly for me the seemingly almost insurmountable difficulties that surround the concept of legal culture. Even so, as Lawrence Friedman argued in the second chapter, some concepts , such as "public opinion" or "standard of living;" defy simple definition. They remain, nonetheless, important to our understanding of the political or legal world. "Legal culture" is obviously one of those, but after having read this book I will hopefully be more aware when I next invoke it as my default explanation. For that reason, I would highly recommend this book to anyone conducting comparative judicial or political studies.