Legal cultures have much in common with Paella. It is common knowledge that Paella is one of the best-known dishes in Spanish cuisine. Still there are many variations of the dish, from the more traditional Valencian (Paella valenciana) to seafood paella (Paella de marisco) or mixed paella (Paella mixta). The word Paella refers to a shallow traditional pan used to cook the dish on an open fire and can thus be translated as ‘frying pan’. Even though the ingredients used to cook the dish vary quite extensively depending on local customs and traditions, some basic elements are more or less common to all versions of paella. This applies both for the cooking method and some standard ingredients such as round grain rise, a stock and certain proteins. Defining these common elements as the tertium comparationis enables us to compare variations of paella and categorise and classify paella regarding the versions’ origins, content and cooking methods. The same applies to a comparison of legal cultures. But what are the specific elements that determine the culture of law? Or, to put it differently, can we identify universal elements of legal cultures that allow us to conduct a meaningful comparison?
For more than ten years the Research Group for Legal Culture, Legal History and Comparative Law in Bergen (Norway) has worked to answer these questions. The edited volume Comparing Legal Cultures provides an affirmative answer. It establishes a framework for comparing and analysing selected, key features of fifteen legal cultures. Based on an operationalized concept of legal culture as ideas and expectations of law made operational by institutional(-like) practice, we have developed a model consisting of six basic elements which can be identified in all (modern) legal cultures around the world (except, perhaps, for indigenous legal cultures). All legal systems have developed institutional forms of conflict resolution and norm production. The ways in which these institutions are organized, operate and interact with other connected features of a given legal culture might vary extensively. On the other hand, similarities can be discovered where one might not expect them. Despite not having established constitutional courts, the Nordic countries have provided their Supreme Courts with competences similar to those of continental European constitutional courts. In contrast to many continental courts, but not unlike the common law systems, Nordic Supreme Courts produce precedents. Comparing specific functional mechanisms of conflict resolution and norm production enables us to pinpoint such similarities and differences in a systematic manner.
In addition, we have acknowledged that describing legal cultures requires consideration of intellectual elements as well. Law is a product of its socio-cultural context. Understanding and comparing legal institutions, the material content of law, or its application in different legal systems therefore requires a contextual approach. As all cultural constructs, law has been shaped by human interactions, religious beliefs, language, custom, mentalities, economy, geography, and several other factors. It seems impossible to integrate all these, certainly important, factors into an operationalized concept of legal culture. Therefore, we decided to limit our approach to encompass features which are especially relevant for the institutionalized application of law. In other words, we examined the specific mentalities, methods and perceptions of practicing lawyers operating in (and at the same time dynamically shaping) a legal culture. The intellectual structure of our operationalized concept of legal culture consists of four elements: the prevailing ideal of justice, legal method, degree and attitude towards professionalization, and internationalization. These elements are not only relevant when trying to understand how law is applied and conflicts are resolved in a specific legal cultural setting, but also when asking what is regarded as the overall purpose of law, how lawyers should be educated or how to handle legal pluralism and the impact of an increasing internationalisation of law.
Our reference point is the national legal culture. As long as the majority of practicing lawyers perceive the boundaries of their legal identity in national terms, it seems appropriate to focus on the legal culture in which they developed particular mentalities and in which they perform their profession. However, state and nation are not opaque concepts in this regard. Legal cultures can exist both inside (e.g. England and Scotland; different legal cultures in the USA) and outside state boundaries (e.g. European legal culture).
Applying this framework to 15 legal cultures allows the reader to identify, analyse and explain similarities and differences between selected legal cultural elements. It invites the reader to study them contextually by emphasising the interaction between its components. To illustrate this, one can imagine that changing the institutionalised procedures of norm production (e.g. through the constantly growing importance of international or supranational law) most certainly impacts the way in which judges apply the law, especially when interpreting law that has been produced outside the boundaries of the legal culture at hand. In some countries, the increasing importance of the case law of international courts has triggered resistance among practising lawyers or even has been regarded as a threat to their cultural identity, while in other legal cultures with a long tradition of receiving impulses from abroad, these transitions between different legal systems and cultures (e.g. the reception of law, soft-law or implementation of international law) are regarded as less invasive. The impact of this development on legal education and professionalisation is undeniable.
The COVID-19 pandemic, to name another example, triggered an urgent need for digitalisation of civil procedure. Recent research by Bart Krans et. al. indicates that the response to this common challenge can be quite different, depending inter alia on the mentality of judges, human and financial resources, or the normative framework governing conflict resolution mechanisms. Another interesting factor might be the often culturally determined degree of confidence in the courts.
The aim of Comparing Legal Cultures is to enhance the reader’s understanding of selected legal cultures including their historical roots and cultural embeddedness. It further aims to enable the reader to conduct a comparative analysis based on a deeper holistic and more sophisticated understanding of the legal cultures in question. Moreover, it provides general guidelines on how to conduct a comparison using the information provided in the chapters on the selected legal cultures. We have developed a seven-step model organised in a hermeneutical circle explaining step by step how to proceed when working in the field of comparative law. The book can thus be regarded as a point of departure and a tool for all kinds of comparatists, regardless of whether the reader intends to conduct comparisons at the micro or macro level, or to adopt a positivistic, a socio-legal, critical or a pluralistic approach to the law.
Experts on the 15 legal cultures included in the volume have been asked to structure the presentation of their native legal culture according to the legal cultural model presented above. We started our project with a limited number of legal cultures in the first edition of the book, which was published in 2017 (Germany, Austria, France, England and Wales, Scotland, Finland, and Estonia). In the second edition, we managed to extend the range of cultures to encompass cultures such as China, USA, Australia, Italy, Belgium, Norway, Romania and Poland. It is important to emphasise that the legal cultural approach chosen in this book is not determined by traditional taxonomies or classifications. For the purposes of comparing legal cultures, the typology of legal traditions or legal families has proven to be inexpedient, even obstructive. As a consequence, we did not focus on some representatives of the Common Law and Civil Law systems, such as Germany, France, England and the USA. It is rather our ambition to continuously extend the range of cultures and to provide the reader with illustrative examples and sources from different legal cultures around the world. In the longer term, we aim to map the world’s legal cultures according to the framework established in the first four chapters of the book. In other words, this book is an important step on the way, but is not the end of our journey. It is our hope that the book helps both students and practicing lawyers, as well as policy-makers, to get a better understanding of the aims and methods of contextual comparative research based on a legal cultural perspective.
The legal cultural approach developed in Bergen has impacted teaching in comparative law at almost all Norwegian institutions offering a law degree. In addition, it has been used in courses on comparative law in several counties in addition to Norway (Scotland, Estonia, Poland, Switzerland, Spain, and China). The Research Group on Legal Culture, Legal History and Comparative Law closely cooperates with partners domestically and internationally. Our members are engaged in several domestic and international research projects. The Group regularly organises open seminars, workshops and presentations. For more information, please consult https://www.uib.no/en/rg/legalculture.
Posted by Professor Sören Koch (University of Bergen)
British Association of Comparative Law 