Roger Cotterrell, Law and Culture

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Jurist- og konomforbundets Forlag

Law and Culture

inside and beyond the Nation State

Roger CotterrellROGER COTTERRELL1

Summary: The question of how law should address 'culture' is pressing. But culture should not

be seen as a unity. It consists of diverse components relating to ultimate values and beliefs,traditions, emotional allegiances and instrumental social relations and law relates to thesecomponents in different ways. Culture is a bounded unity only in the dangerous, pathologicalcase of absolute cultural divisions which state law should oppose. The concept of legal cultureis equally problematic when it suggests bounded cultural unities. But when culture is conceptua-lised in terms of fluid networks of community it becomes possible to analyse not only issues ofmulticulturalism, but also the ways in which transnational regulation serves social networks thatextend beyond the boundaries of nation states.

Keywords: Culture; legal culture; multiculturalism; harmonisation of law; transnational law

1 Introduction

This paper asks how legal scholarship should address the idea of legal culture and,more generally, problems of the relationships between law and culture.2These areimportant topics, perhaps among the most pressing for legal scholarship today.Surely no-one in Denmark or in Britain who reads newspapers or watches televisioncan doubt that culture in some sense has become a vitally significant issue for

law.In Britain, as elsewhere, much has been heard about what international commen-tators have called, since 2005, the 'Danish cartoons' case.3Correspondingly, Scandi-

1 Anniversary Professor of Legal Theory, Queen Mary and Westfield College, University of

London.2 This is the text of a talk at the inauguration of the Centre for Studies of Legal Culture, Fa-

culty of Law, University of Copenhagen, on March 7th2008.3 See e.g. R. Tait, 'Three arrested in Denmark over plot to kill Muhammad cartoonist' The

Guardian (London), February 13th 2008; J. Olsen, 'Danish papers reprint cartoon ofMuhammad'TheGuardian, February 14th 2008.


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navian observers are, no doubt, aware of the furore in Britain that arose recentlyfrom statements by Rowan Williams, the Archbishop of Canterbury and head of the

established Church of England, to the effect that he considers it inevitable that someaspects of Islamicshari'alaw will eventually be recognised in United Kingdom law.4His comments produced furious condemnation in the popular press and led to callsfor his resignation. The particular aspects of culture relevant in both the Danish andthe British cases are the commitments and sensibilities of religious minorities andthe extent to which the law of the nation state should protect or reflect these com-mitments and sensibilities.

The fundamental controversy is about how law should reflect, express or evencontrol an aspect of culture. The issue attracts intense popular passions, no less than

scholarly analysis. 'Law and culture' makes people angry. It has become prominent,in the cases just mentioned, because of a recognition that culture can no longer betaken for granted by law, or ignored by law; it can no longer be treated legally asuniform and unproblematic but must be seen as a plurality of not necessarily har-moniously co-existing forms. Our societies are multicultural, not mono-cultural. Nodoubt they never were mono-cultural. But, at least in Britain and perhaps in Den-mark too, in times when population movements between nations were more limitedit was easier for legal analysis to assume cultural homogeneity even while recogni-sing great social diversity with regard to social class, social mobility and levels ofwealth. The assumption was that culture in the sense of beliefs and values, allegian-ces and national sentiments, custom and traditions, was relatively uniform.5Whensuch an assumption exists, culture can be largely invisibleto law. It does not need tobe treated as a concept that legal analysis must address. But this legal myopia is nolonger possible.

2 Dimensions of Culture

What does 'culture' mean? The Danish and British examples I have referred to, of

culture 'invading' law, reflect the existence of a diversity of beliefsandultimate valuesamong members of the same national political society. In Britain it was a religiousleader who advocated official recognition of practices reflecting minority religiousconvictions. Opposition came from those who saw a threat to national values reflec-ted in law. The conflict was about beliefs and values. Similarly, the main stated

4 See e.g. A. Grice, 'Williams resists calls to resign over sharia row' The Independent(London),February 11th 2008; J. Brown, 'Williams tries to defuse row over sharia law but refuses toapologise' The Independent, February 12th 2008.

5 See e.g. J. Citrin and J. Sides, 'Immigration and the Imagined Community in Europe andthe United States, (2008) 56 Political Studies33.


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justification for re-publishing the Danish cartoons was, according to press reports Ihave read, to defend ultimate values of freedom of speech. The value system of libe-

ralism was set up on one side; and, on the other, precepts of a religious belief sy-stem. Again, culture appears as a matter of beliefs and values.

But any concept of culture that might be adopted for the purposes of legal analy-sis would need to cover much more than beliefs and values. What culture seems inpopular understandings to cover is extremely varied. Recently, news has comefrom Turkey that the hadith, the reported sayings and traditions of the prophetMuhammad, are being officially re-edited to remove accretions reflecting not thefundamental beliefs of Islam but the local understandings and practices of the parti-cular communities and times in which the hadithwere assembled.6The aim is to

separate fundamental beliefs of Islam from matters of mere contingent custom andtradition. Tradition is, indeed, often usefully distinguished from belief or values as acomponent of culture. In practice these components are often closely intertwinedbut analytically they are separable and it might be important in studying culture,and laws relation to it, to distinguish them. Laws capacity to respond to matters ofbelief and ultimate values to interact with, express or regulate such matters ap-propriately may be different from its corresponding capacity in relation to mattersof custom and tradition.7

Tradition might be taken to include the many diverse kinds of inheritance thatcan be ingredients of culture for example, common language, common historicalexperience, collective memory, and the character of a shared geographical environ-ment. Law has important challenges to face in regulating everyday conditions of co-existence arising from the mere fact of living together in the same environment, thesame language group or the same neighbourhood. Its task here will often involvedefiningarenas of co-existence; that is, relevant environments and their boundaries. Itmust prevent friction across those boundaries, and between people who have to co-exist inside them.

But even these matters do not exhaust culture. Culture can refer not just to sha-red beliefs and values, and common traditions, but also to what anthropologists call

'material' culture levels of technological development and economic interaction.'European culture', for example, may be a meaningful idea in several ways. It can

6 See e.g. R. Piggott, 'Turkey in radical revision of Islamic texts' BBC News, February 26th2008 ; D. McGuire, 'Turkeymodernizes interpretation of Qur'an' Radio Netherlands, February 29th 2008; M. Akyol, '[Sex-ism Deleted] in Turkey' Washington Post, July 16, 2006.

7 R. Cotterrell, Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (2006) pp.123-4, 155-6.


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refer to a sense of 'European values', however ambiguous and contested these maybe; or a common European territory and history, although the experience of that

history has been very different in different parts of Europe, and may divide as wellas unify Europes populations. It can also refer to levels of technological develop-ment and forms of economic co-operation, development and integration that aretypical in Europe but distinct from those in other parts of the world. Yet these eco-nomic and technological patterns are diverse and their effects not always unifyingones.

Not to be neglected, either, are shared emotional attachments and rejections:culture can be a matter of loves and hatreds, attractions and repulsions, definitionsof 'us' and 'them', that are not necessarily reducible to differences of tradition, belief

or values; or to shared conditions of economic or other kinds of instrumental inte-raction. Thus, when people think of their cultural attachments they sometimes findthat these are not entirely explicable in terms of beliefs/values, traditions or materialinterests (though efforts may be made to rationalise them in those terms). Also in-volved may be diffuse feelings of cultural allegiance or belonging, or of differentiati-on from what are seen as alien cultures. One can, for example, simply feel 'Euro-pean', or not or feel European to varying degrees at different times and in diffe-rent circumstances.

There is, thus, no single relationship between law and culture, because culture isnot a single thing not, in fact, a 'thing' at all. It indicates experiences or percepti-ons of a multiplicity of conditions. But some kinds of conditions can and should bedistinguished for legal purposes and dealt with separately. Thus, laws relation tobeliefs and values may often be very different from its relation to tradition (in thebroad senses of tradition that I have indicated), or to networks of instrumental rela-tions, or to matters of emotion.

I think it is a central task for the study of law and culture to examine how, as atechnical and policy matter, law can address each of the four general components ofculture beliefs/values, traditions, instrumental (economic/technological) matters,and matters of affect (emotion) that I have identified. What differences are there

in laws resources and capabilities when it addresses each of these components?8

Inreality, networks of community life are built on complex combinations of these fourbroad components of culture, which are themselves expressed in innumerable forms.And so, in practice, these components do not exist in isolation from each other.Nevertheless, precision in juristic thought requires that at least these basic compo-nents should be analytically separated to consider their general challenges for law.Otherwise to try to relate law to a concept of 'culture' that defies precise definition islike trying to nail jelly to a wall it cannot be done.

8 I have discussed this in detail inLaw,Culture and Society,op. cit.


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3 Legal Culture and European Jurists

What of legal culture? This has now become an important concept in legal scho-larship. The idea of legal culture has tended to replace the old comparative law con-cept of 'legal families'. This distinguished, in Zweigerts and Ktzs authoritativemodern formulation, between 'Romanistic' (primarily French-influenced), 'Germa-nic', 'Anglo-American' and 'Nordic' families of legal systems, and between thesecollectively and their exotic 'others' 'Law in the Far East' and 'Religious Legal Sy-stems'.9Merely listing these crude classifications is enough to signal the abject failu-re of the 'legal families' concept to recognise the cultural complexity of todays legalworld. If the primary focus of the legal families approach in practice was to high-

light broad differences and points of comparison between European legal systems,much literature on legal culture adopts a similar focus. But it has aimed to do more.The legal families approach focused on formal legal institutions and official legaldoctrine in Lawrence Friedmans term, on 'mandarin materials of legal scho-larship'.10Legal culture literature, however, is concerned also with differences in theassumptions, perceptions, feelings and expectations about law and legal practicethat exist in different contexts. Contributions to it by jurists still tend to show a'mandarin' orientation, but sociolegal research on legal culture often adopts a broa-der focus.11

Up to now, something more than the needs of disinterested scholarship has inspi-red juristic invocations of the concept of legal culture. The idea has been used, forexample, to claim that there are fundamental cultural differences (essentially interms of legal professional outlook) between continental European civil law andEnglish common law. This difference has then been said to make it impossible orundesirable to harmonise European private law.12In other circumstances, legal cul-ture has been invoked to support opposite arguments. Thus, claims that a Europeanlegal culture is already in existence,13 that its traditions can be reinvigorated,14 or

9 K. Zweigert and H. Ktz,An Introduction to Comparative Law, 3rdedn. (1998).10 L. Friedman, 'The Concept of Legal Culture: A Reply' in D. Nelken ed., Comparing Legal

Cultures(1997) p. 38.11 See e.g. D. Nelken, 'Rethinking Legal Culture' in M. Freeman ed,Law and Sociology(2006);

Nelken, 'Comparing Legal Cultures' in A. Sarat ed, Blackwell Companion to Law and Society(2004).

12 P. Legrand, 'European Legal Systems are not Converging' (1996) 45 International and Compa-rative Law Quarterly 52; Legrand, 'Antivonbar' (2006) 1Journal of Comparative Law13.

13 F. Wieacker, 'Foundations of European Legal Culture' (1990) 38American Journal of Compa-rative Law1.

14 R. Zimmermann, Savignys Legacy: Legal History, Comparative Law, and the Emergence ofa European Legal Science' (1996) 112Law Quarterly Review576 at 600-1.


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that European lawyers inhabit a common culture15are used in various ways to sup-port the feasibility of increasing European legal harmonisation.

In these debates much is at stake: culture is seen either as a barrier dividing Eu-rope legally or as a potentially unifying background. The argument in the lattercase tends to suggest that divergences at the level of rules, between different Euro-pean legal systems, may be less significant than they superficially appear, since thecultural trajectory of Europe is towards common solutions to legal problems, even ifthese solutions have so far been expressed in different conceptual terms in variousnational legal systems.16

Juristic concepts of legal culture have tended to emphasise lawyers'legal culture,the culture of professional legal practice. This has been seen as a matter of (largely)

legal professional values and ways of thought (mentalits) that are said to inform allaspects of legal practice, often in hard-to-define ways. The claim is made by somewriters that thinking like a lawyer is a fundamentally different kind of thinking inFrance, for example, as compared with England.17But it is not clear why it shouldbe assumed that there is a single monolithic national legal culture in these or othercountries.18Again, those who assert that differences in legal culture present a fun-damental barrier to European legal integration have yet to show that legal culturesare necessarily impenetrable, rather than porous. Why should they not be un-derstood (like culture, more generally) in terms of diverse, often contradictory expe-riences of shared beliefs, values, traditions, allegiances and interests? Why should itbe wrong to think that these elements of culture can be modified, and, indeed, areprobably being modified continuously, not least because of their impact on eachother? Why not assume that parts of culture change as other parts stay constant?

On the other hand, those who see culture as irrelevant to processes of legal har-monisation, or at least as no obstacle to it, tend to take a no less unsatisfactory viewof legal culture. Much harmonisation is driven by the assumed needs of business.The needs that drive harmonisation activities are thought of largely as those of

15 O. Lando, 'Why Codify the European Law of Contract?' (1997) 5 European Review of PrivateLaw 526 at 529-30: 'The peoples of Europe share the legal values of a Christian society andof a market economy which is under governmental control.'

16 Cf. R. Zimmermann, 'Comparative Law and the Europeanization of Private Law' in M.Reimann and R. Zimmermann eds., Oxford Handbook of Comparative Law(2006) p. 547. Thelegal sociologist Lawrence Friedman claims that what he calls 'modern legal culture' is pro-ducing a gradual convergence of legal solutions in 'modern, industrial, "advanced" societies',despite national doctrinal differences: see Friedman, 'Is There a Modern Legal Culture?'(1994) 7Ratio Juris117.

17 Legrand, 'Antivonbar', loc. cit. 30-2.18 G. Samuel, Epistemology and Method in Law(2003) p. 50 (note 141).


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business networks built on the instrumental social relations of the market.19 In sofar as the most general interests (for example, in profitable and efficient commerce)

served by these networks are uniform, and harmonised law is considered only inrelation to these interests, culture may seem an irrelevantconsideration. Harmonisa-tion may appear obviously useful for economic purposes promoting simplificationof transactions for business actors who can readily see the point of it; trade is trade.But the approach to culture that I have suggested focusing not just on instrumen-tal social relations, but also on elements of belief or ultimate values, tradition andaffect demands that non-instrumental aspects of culture are not to be ignored.Harmonisation debates should address not only instrumental (economic) considera-tions, since laws relation to culture is a relation to allof its potentially intertwined

components.20

The question is: how do instrumental and non-instrumental aspectsof culture interrelate, especially when the likely effects of legal regulation are to beconsidered.

Debates about the viability or desirability of harmonising European private lawclearly occupy a very different intellectual terrain from the debates with which Ibegan this paper those relating to the legal recognition of minority religious aspi-rations or sensibilities. Discussions of European legal harmonisation can certainly beimpassioned. But they do not show the intensity of feelings that have made somecontroversies about laws relation to religious beliefs and to ultimate values not real-ly debates at all, but more a matter of anguished protestations and unleashed furyon all sides.

4 Law and absolute cultural Divisions

Could it be said that discussions of legal culture, as reflected in the European har-monisation debates, involve an entirely different understanding of culture from thatinvolved with, for example, the Danish cartoons case, or arguments about the possi-bility of a Europeanshari'a law? If legal culture is specifically lawyers' legal culture,

then what it embraces in terms of the four components of culture identified in this

19 C. Von Bar, O. Lando and S. Swann, 'Communication on European Contract Law: JointResponse of the Commission on European Contract Law and the Study Group on a Euro-pean Civil Code' (2002) 10 European Review of Private Law183 at 198-9.

20 Cf E. Banakas, 'The Contribution of Comparative Law to the Harmonization of EuropeanPrivate Law, in A. Harding and E. rc eds, Comparative Law in the 21stCentury(2002) p.185, noting resistance to harmonisation on the grounds that private law 'is more than com-petition in the market or corporate and commercial transactions. It is also about intimate,very personal aspects of personal life, that judges are convinced are better dealt with in theenvironment of the local culture and tradition.'


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paper are the constraints and possibilities arising from the common interests, tradi-tions, beliefs, values and allegiancesoflawyers particular legal professional groups,

rather than those that exist in the wider society. On this view, legal culture mightbe expected to be a narrower, quieter, often much less diverse, topic for inquiry thanrelations between law and culture in a larger sense.

Thus, it is possible for someone such as Professor Ole Lando of the CopenhagenBusiness School, a leading figure in the Commission on European Contract Law overmore than two decades, and in other harmonisation projects, to see shared valuesand a 'common attitude' among lawyers from different European countries (inclu-ding Britain) as the key to success in legal harmonisation. several factors have cau-sed this common attitude,' writes Lando. 'The similar economic and political struc-

ture of the [EU] Member States is one. Another is their common cultural heritage.All Europeans share the Christian ethic, and have been influenced by Roman lawand the great moralists. The milieu in which both judges and law professors areraised and live is also a factor. Most of the guardians and preachers of our law andjustice grew up in well-to-do bourgeois homes with moral traditions. In Europe, themiddle class has been the guardian of ethics, and so have the parents of the judgesand professors.... Thus, the legal values of the European brotherhood of lawyers arevery similar.'21

The image is surely striking: inside the harmonisers' conference room the quietprocesses of legal professional negotiation and agreement go on. The clamour froman increasingly noisy multicultural population outside does not disrupt this calm.Nor should it, necessarily: the wider constituency for which the harmonisation ofcontract law in Europe is relevant may be primarily the constituency of business anetwork of mainly economic, instrumental social relations of community that mightbe assumed to be not very directly linked to matters of belief or ultimate values,tradition or affect. But if this network of social relations is, indeed, of a particular,limited kind (a matter that would require empirical study) it is, nevertheless, a wi-der constituency beyond the legal professional one and it might be dangerous to seelegal culture as a purely legal professional culture, rather than one that always rela-

tes to constituencies in society beyond the lawyers' professional sphere. Indeed, itmight be reasonable to speculate that this professional sphere itself is likely to chan-ge 'with all deliberate speed' 22 to reflect increasingly the cultural diversity of thewider society.

21 O. Lando, 'Optional or Mandatory Europeanisation of Contract Law' in S. Feiden and C. U.Schmid eds, Evolutionary Perspectives and Projects on Harmonisation of Private Law in the EUEUIWorking Paper LAW 99/7 (1999) pp. 20, 21, 22.

22 The famous phrase of the United States Supreme Court in Brownv Board of Education, 349US 294 (1955), seems appropriate to imply the apparent ambivalence of efforts to effectsuch a change and its slow pace, at least in Britain. Yet the change is undoubtedly under-


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In sociology of law, the best work on legal culture, I think, has been research thattries sensitively to consider variations in both professional and popular legal expe-

rience, holding in focus thewidest possible rangeof components of culture and consi-dering how these interrelate in particular contexts. It has been most effective whenit illustrates the sheer complexity of cultural variation and the problems of interpre-ting this.23Otherwise scholarship on law and culture is often particularly rewardingwhen it focuses on specific juristic foci of cultural difference such as conflicts orcontrasts of values or beliefs,24or questions of how far elements of tradition (inclu-ding, for example, minority languages) should be protected by law, or of how farlaw can sustain legitimacy and attract allegiance in culturally diverse societies. Ju-ristic tasks of interpreting culture will be most manageable when culture is broken

down into its component parts as this paper has advocated. The effect will be toshow relations of law and culture as complex, diverse and often contradictory, butcentral for legal scholarship since they are expressed in so many problems of con-temporary regulation.

It might be asked: why not avoid referring to culture and merely focus on itsjuristically distinct components beliefs/values, tradition, instrumental (especiallyeconomic) relations, and emotional allegiances and resistances? After all, it is con-flicts around these matters that cause problems for law and that law needs to ad-dress: culture, as such, is too vague an idea for law to address as a unity. But cultureand legal culture remain useful ideas to suggest as a kind of hypothesis thatcomplex and variable linkages exist between the elements that have been separatedout, and that these linkages need to explored in particular contexts.

Also, to think of all four basic aspects of culture together is especially importantwhen conditions arise in which the four aspects increasingly tend to mirror each other.For example, a particular social group may come to be divided from other socialgroups not only perhaps by its differentbeliefsand its differentcustoms, but also by itsdistinct, self-contained economic networks, and perhaps by its emotional hostility toother groups or by becoming the focus of such hostility. Different aspects of culturemay then reinforce each other very strongly, not necessarily because the group in

way. The emergence of critical race theory in the United States reflects increasing culturaldiversity in American laws professional field.

23 See e.g. D. Nelken, 'Beyond Compare? Criticizing "The American Way of Law"' (2003) 28Lawand Social Inquiry799; Nelken, 'Italian Juvenile Justice: Tolerance, Leniency or Indulgence?'(2006) 6 Youth Justice107.

24 See James Whitmans controversial but imaginative comparative studies of fundamentallegal values: 'Two Western Cultures of Privacy: Dignity versus Liberty' (2004) 113 Yale LawJournal1151;Harsh Justice: Criminal Punishment and the Widening Divide Between America andEurope (2003); 'Enforcing Civility and Respect: Three Societies' (2000) 109 Yale Law Journal1279; and G. S. Friedman and J. Q. Whitman, 'The European Transformation of HarassmentLaw: Discrimination versus Dignity' (2003) 9 Columbia Journal of European Law241.


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which this occurs chooses or wishes to exist in relatively pervasive cultural separati-on but because circumstances of interaction with other groups somehow promote

this. In this situation a cultural division becomes dangerously nearly absolute,reinforced across all or most of the four basic aspects or dimensions of culture. Theresult is that different social groups seem to tend increasingly to inhabit self-sufficient cultures of their own. Culture becomes something with definable bounda-ries, and cultural difference becomes a matter of invisible (but increasingly impreg-nable) walls and fences. Indeed, this may lead, if all productive communication be-comes impossible, to real walls and fences designed to keep populations apart.25

It is surely one of the tasks of law to adopt regulatory strategies that help toavoid, at all costs, this kind of development in a national political society. In my

view multiculturalism is a healthy and natural social phenomenon where it amountsto a wide diversity of beliefs, traditions, allegiances and interests all linked togetherand relatively integrated through the diverse interactions of numerous networks ofcommunity. But the creation of absolute cultural divisions would amount to thereification of culture as the life of a social group largely separated from the largernational society. Laws primary strategies in such circumstances should be to fostercross-cultural communication in every way possible. Law, itself, should communi-cate and, where appropriate, enforce certain ultimate values of respect for individualautonomy and dignity that encourage and protect social interaction and participati-on by all individuals in the national political society as a whole.26 What mileDurkheim understood as moral individualism27 universal respect for others asindividual human beings still remains the necessary basis for respecting (andcommunicating across) cultural differences, within a framework of complex solidari-ties appropriate to contemporary European societies.

25 See B. S. Turner, 'Managing Religions: State Responses to Religious Diversity' (2007) 1Contemporary Islam123 at 133-6, on the creation of social enclaves', in contemporary socie-ties.

26 See R. Cotterrell and A.-J. Arnaud, 'Comment penser le multiculturalisme en droit' (2007)23L'Observateur des Nations Unies (Revue de l'Association Francaise pour les Nations Unies, SectionAix-en-Provence)7; Cotterrell, 'The Struggle for Law: Some Dilemmas of Cultural Legality'International Journal of Law in Context, forthcoming.

27 . Durkheim, 'Individualism and the Intellectuals' [1898] transl. by S. and J. Lukes, in W.S. F. Pickering ed.,Durkheim on Religion: A Selection of Readings with Bibliographies(1975); R.Cotterrell, mile Durkheim: Law in a Moral Domain(1999) ch.7.


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5 Culture inside and beyond the Nation State

There is another important reason for holding on to the idea of culture in relation tolaw, and also for making ideas of legal culture a focus for juristic study. The conceptof culture marks out, even if only provisionally, a terrain which legal scholarship canoccupy that takes it beyond any narrow limitation to the legal categories establishedby the law of national political societies.

In two ways this paper has already attempted to illustrate this. Firstly, in conside-ring the relations of law and culture in connection with the challenges of multicul-tural societies, legal scholarship is led to recognise culturally diverse legal aspirationsinsidethe nation state. Discussion is no longer just in terms of formally equal citi-

zens before the law. Instead, legal inquiry is encouraged to consider the variety offorms of group life within the national political society and their impact on the situ-ation and expectations of individuals. A focus on law and culture gives a furtherdimension to legal scholarship. It does not necessarily displace any of the existingapproaches of legal study, but it may provide a useful supplement to them.

Secondly, debates about legal culture in connection with harmonisation projectsfocused especially on European private law suggest a different kind of extension ofthe legal imagination. Here culture is invoked to suggest what can be similar andwhat can be different in legal thought and experienceacross national boundaries. The

focus is not on cultural similarities and differences inside the nation state in theirrelation to law, but on these kinds of similarity and difference in relation to culturalnetworks and groups that are not necessarily limited by the borders of particularnation states.

A focus on the relations of law and culture holds out the promise of an escapefrom the limitations of thinking of law solely in terms of uniform nation-state juris-dictions. Culture, appropriately conceptualised in the way I have suggested, is anidea that points to new emphases in the juristic study of patterns of diversity withinnational societies. But it also points to the kinds of conditions that juristic scho-larship should study when it seeks the foundations of emergent, or newly signifi-

cant, kinds of transnational law.28These varied kinds of law (for example, internati-onal human rights law, international commercial and financial law, European Unionlaw, and many less clearly definable emergent forms of transnational regulation)may need foundations that can be thought of as cultural. In other words, they mayneed support from social networks and groups that are linked together by aspects ofculture by shared beliefs or values, by tradition in various forms, by common orconvergent interests uniting people instrumentally, or by more diffuse allegiancesand attachments.

28 R. Cotterrell, 'Transnational Communities and the Concept of Law' (2008) 21Ratio Juris1.


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Thus, it is possible to speak about business cultures,29legal and other professionalcultures, human rights cultures and so on. All of these can exist on a transnational

basis and all are potentially carriers of law in the sense that cultural groups ornetworks of social relations of community can themselves foster or inspire the regu-lation they require. They may be important in giving (or refusing) legitimacy to law confirming (or denying) its moral authority and its practical meaning and signifi-cance. Insofar as social networks and groups recognise the binding force of transna-tional regulation, invoke it and rely upon it, they supply the input of interests, de-mands, controversies and experiences that allow it to develop.

The main obstacle to invoking culture usefully in these kinds of contexts is thatcomparative lawyers, legal sociologists and other scholars of law still often try to use

the concept of culture as if it designates a single well-understood phenomenon thatlaw can address directly. So, when comparative lawyers claim that differences inlegal culture obstruct the harmonisation of law across national borders (or converse-ly that the existence of a European culture makes the creation of pan-European lawfeasible) they rarely specify precisely what they mean by culture the scope of theterm, how one culture is to be distinguished from another, and how culture acts as acause of legal developments or a force undermining them.

The problem, long recognised by anthropologists and sociologists, is that culture,because of its conceptual imprecision, is not directly useful in identifying causes ofor constraints on particular social developments including legal developments.The solution is not to discard the concept but to use it to highlight provisionally arange of important social phenomena awaiting analysis and comparison pheno-mena that can be conceptualised in terms of social relations that unite or dividepeople in groups and networks. What is vital is to recognise that the bonds (of inte-rest, belief/values, tradition and affect) that hold together these social relations areradically different in nature from each other, and are likely to have very differentrelations to law. Thus the portmanteau concept of culture should be disaggregatedto reveal the diverse types of social relations of community that it implies. It is lawsrelation to these types of community that should be emphasised when the links

between law and culture are being studied.Because laws instrumental uses and its relevance for instrumental (especiallyeconomic) social relations are always prominently recognised in contemporary legalscholarship,30a juristic focus on 'culture' probably has most significance in puttingback into the centre of attention laws links to matters of tradition, affect, belief and

29 O. Lando, 'Comparative Law and Lawmaking' (2001) 75 Tulane Law Review1015 at 1023:'international business is more and more becoming a cultural circle of its own where thecommercial practices have been influenced by the great trade nations.'

30 See e.g. B. Z. Tamanaha,Law as a Means to an End: Threat to the Rule of Law (2006), forrecent claims about the proliferation of legal instrumentalism.


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ultimate values. In doing so, it not only suggests that these matters are as impor-tant for legal analysis as instrumental-economic considerations, but that the latter

should be understood in the light of their interrelation with the former.So, the idea of culture, despite its vagueness, usefully focuses attention on the

sheer range of phenomena that shape and reinforce social relations of community indifferent forms. Culture is best thought of in terms of complex networks of commu-nity networks not fixed in some static, unchanging way, but flexibly structuredand articulated through ever-shifting bonds of communal social relations. The morethese networks are strong and stable the more meaningful will 'culture' seem as aconcept to refer to social life within them. Thus, law, in so far as it supports, pro-tects and expresses social relations of community, helps to build culture. Yet culture

remains a fluid, ever-changing aggregate of diverse networks of social relations.

6 Conclusion

One implication of the arguments in this paper is that studies of law and cultureencompass a broad field indeed, they designate not so much a special field of legalscholarship as anapproachto legal scholarship in general; an approach that emphasi-ses laws place in and contribution to networks of social relations of community.

The study of law and culture relates to the whole range of diverse components ofculture. It focuses on laws contribution to sustaining and integrating social net-works that, because of their relative stability and distinctiveness, are readily thoughtof as 'cultural'. A further implication of my argument is that this 'cultural' approachto legal study is very important for legal scholarship today. After the demise of thehistorical school of jurisprudence, the relations of law and culture were neglected fortoo long in mainstream legal scholarship. Now they should be placed in theforeground again, but with a strong emphasis on empirical studies of cultural phe-nomena.

Legal anthropologists showed the way and they still produce very important

work in this field. Many comparative lawyers now treat the concept of legal cultureas central to their concerns. In my view, however, they should liaise with legal socio-logists and anthropologists to make their invocations of 'culture' rich and empirical-ly detailed.31There is no doubt that the idea of culture is currently important inmany legal fields. We are familiar today with conceptions of cultural rights, legalissues of protection of cultural heritage, controversies over cultural defences, andmany other indications that a general consciousness of 'culture' has invaded con-

31 See Cotterrell,Law, Culture and Society, op. cit. ch. 8.


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Roger Cotterrell

temporary legal thought.32In these circumstances, a new emphasis on the study oflaw in connection with the diverse networks of social relations that we associate

with the idea of culture could hardly be more timely.

Frfattarupplysning: Roger Cotterrell is Anniversary Professor of Legal Theory,Queen Mary and Westfield College, University of London.

32 Ibid, pp. 97-102.

Documents

Roger Cotterrell, Law and Culture