Sociology of Law, Lund University, Lund, Sweden
This chapter continues to explore the relationship between law, culture and forms of power, but it will do so through the methodological lenses of comparative law and by developing the idea of contextualisation, which was discussed in Chap. 5. It will demonstrate that forms of contextualisation are also deployed widely within comparative law as part of the method of exploring similarities and differences between laws and legal systems in different jurisdictions.
This chapter is a revised version of ‘Power, Culture and Method in Comparative Law’. In: (2009) International Journal of Law in Context 5(1): 69–85.
Chapter 5 outlined various contextualising approaches which had been developed in response to the separation of law as a system of rules, with a degree of autonomy, and law as a set of institutional practices or processes embedded in the socio-cultural constitution of the society. The notion of contextualisation explores the implications of the ‘gap’, often demonstrating that law’s operations remain dependent on socio-cultural processes. It also refers to efforts to minimise and where possible to eliminate the ‘gap’ between law as rules and law as social practices. The first contextualisation approach was a response to the insight that the implementation, interpretation and enforcement of legal rules were dependent on socio-cultural norms and extra-legal processes and institutional practices. The second approach was a critique of how modern law dislodged actions from their socio-cultural and historical contexts before examining them (this point was also discussed and developed in Chap. 4 1). Finally, the third approach was a response to the need to restore the societal embeddedness of the legal system and as such was regarded as being linked to the second approach. These three contextualising approaches are interrelated and correspond with different conceptions of the ‘gap’ between law and society, which have informed a great deal of research and debate in legal sociology (see Chap. 3). As this chapter will demonstrate, forms of contextualisation are also deployed widely within comparative law as part of the method of exploring similarities and differences between laws and legal systems in different jurisdictions.
This chapter is divided in three sections. Section 1 discusses the recent developments within comparative law and touches on one of its central methodological issues by asking whether comparative studies should focus on similarities or differences between legal systems and traditions? It will do so partly by discussing various studies in Örücü and Nelken’s (2007) edited handbook of comparative law, and partly in reference to the other recent comparative work. Section 2 starts by arguing that forms of contextualisation of law should be regarded as the indispensable methodological characteristic of all comparative studies of law that aspire to transcend the understanding of law as a body of rules and doctrine. The method of contextualisation situates legal action, behaviour, institution, tradition, text and discourse in specific time and socio-legal space, thus, revealing law’s embeddedness in societal relations, structures, developments and processes. Section 3 presents the central concern of this chapter in relation to legal theory, socio-legal research and comparative law by proposing a combination of the top-down and bottom-up perspectives as a meta-methodological framework within which specific comparative techniques can be employed.
1 Studying Similarities or Differences?
Comparing laws is hardly a new exercise among philosophers and jurists, who have for centuries gained insights into how legal systems work by contrasting ‘familiar’ against ‘foreign’ ways of using law.2 Lawmakers and businessmen have also engaged in comparing their own law-ways with foreign laws, but they have done so for purely practical reasons. Commercial transactions, for example, are very old and have always crossed national borders and geographic boundaries, compelling traders and rule makers alike ‘to look beyond their own city, country, rules and laws’ (Hopt 2008, p. 1162). In its modern form, comparative law is often ‘dated back to the nineteenth century and to the promulgation of the great European codes’ and to the efforts to locate and explore the universal core of all civilised legal systems (Donahue 2008, p. 3). This new search for the universal essence of all laws was conducted not so much in the speculative tradition of natural law but in the spirit of positivism, which located the source of law in empirically verifiable ‘social facts’ such as the command of the sovereign. As Cotterrell (2007, p. 134) explains, the epistemological roots of the search for a unifying foundation of law reveal unease with a concept of law and legal knowledge that ‘is true (valid) in one town but invalid in another, a few miles away across the border’. After all, ‘what kind of moral force can law have if here it says one thing about rights and wrongs, and there it says something else (perhaps the opposite)?’ (Cotterrell 2007, p. 134). Thus, natural law philosophers’ labours to improve man-made laws by identifying and exploring the universal core of law in terms of nature or divine reason came to be replaced partly by comparatists’ studies of foreign legal systems aimed at ‘improving laws by harmonisation… or unification’ (Cotterrell 2007, p. 134). Hence, the search for the harmonisation and unification of laws came to dominate the emergence of comparative law in the twentieth century.
As we currently stand, at the beginning of the twenty-first century, comparative law appears to be enjoying the wind in its sails. From being considered only a few decades ago as a topic ‘for those who were of curious of mind’, it has moved on to become one of the core subjects in the curricula of many European law faculties (Van Erp 2007, p. 399).3 This change of fortune is documented by the number of new journals, research monographs and textbooks generated over the last few years to introduce and explore the various branches of comparative studies of law.4 This increased interest is partly a result of ‘the changing role and practical importance of knowledge of foreign legal systems’ (Van Erp 2007, p. 399), partly due to the profound effects of globalisation processes ‘on the practice and the organisation of law’ (Flood and Sosa 2008, p. 1) and partly a result of the realisation that comparative law, after all, has practical applications and can be used by judges, lawyers and legislators in search of legal solutions, legal reform and the harmonisation of private law across borders. Within the European Union, we find a number of projects that aim at harmonising and unifying the various aspects of private law in order to eliminate ‘differences across national private laws that are perceived [by the promoters of these projects] to be obstructing the optimal functioning of the European Market’ and ‘to redress incoherences caused by fragmentary EU directives’ (Glanert 2008, p. 161). Along with the renewed interest in comparative legal studies comes also an enhanced awareness of the need to reconsider the assumptions, concepts, ideas and methodologies which have traditionally constituted these studies. For example, the idea of the harmonisation and unification of private law, which motivates much of the work carried out by comparatists, is being questioned by a number of scholars who doubt its practical feasibility and moral desirability (Smits 2007, pp. 227–229; Cotterrell 2007; Legrand 1996, 1997). Therefore, instead of constructing similarities intended to harmonise and unify legal systems across time and space, we need to recognise the differences distinguishing them from each other in time and space, for the difference is what endows two things, events or phenomena with their specific properties and sets them apart from each other (see Legrand 2003). The similarity/difference notion takes us back to the discussions on certainty/uncertainty in the Introduction. Those who either emphasise the existing parallels between legal systems or try to construct similarities where there are none, do so partly as an attempt to enhance certainty in an otherwise increasingly uncertain world. For them, recognising differences amounts to succumbing to uncertainty and discontinuity.
Comparative law is also questioned for its Euro-centric assumptions, namely the ‘colonial hubris and the “white” supremacist presuppositions that went with it’ (Menski 2007, p. 191). These are some of the issues and debates that are explored in a new handbook of comparative law, edited by Örücü and Nelken (2007), which will provide the point of departure for discussions in this chapter on socio-legal contextualisation and methodology.5
2.1 Contextualising Laws
A simple but latently subversive methodological message unifies most of the chapters and debates in Örücü and Nelken’s (2007) handbook on comparative law. Most chapters state implicitly or explicitly that the scope of comparative studies of law must transcend the notion of law as a body of rules, in order to include the dynamic institutional processes and practices which produce and reproduce the normative structures of legal systems. This overall methodology reveals the kinship between the handbook, on the one hand, and the sociology of law, legal anthropology and legal history, on the other, and it also explains the consistent efforts made by its authors to contextualise comparative legal research by taking into account the social, cultural, historical, economic and political factors that are in constant interaction with law and legal institutions.6 Different chapters engage with contextualisation in different ways and to different degrees, but they appear to follow the concerns of our first form of contextualisation (which we discussed above). John Bell, for example, who is more concerned with providing a descriptive account of administrative law in different jurisdictions than offering an in-depth contextualised discussion, nevertheless admits that certain aspects of law such as ‘the use of bill of rights… raises issues of how far the enactment of a legal text has an impact on the way in which the legal system works and what is required to ensure that a culture of respect for fundamental values is embedded’ (Bell 2007, p. 301). To answer these issues, Bell (2007, p. 301) informs us that we require ‘legal sociology’, yet to perform his immediate task he appears to be satisfied with the ‘clues’ he finds in the way the legal system ‘has adapted to the new culture of rights’. In contrast, McCrudden gives a more thorough explanation of the gap between the rules and principles expressed in the text of law, on the one hand, and how these are unfolded in legal practice, on the other. In his chapter on human rights, McCrudden (2007, p. 372) distinguishes between ‘theories supporting human rights – including the general principles of human rights – and their application in specific situations’. There is, admittedly, much agreement on the principles of human rights but little consensus on why, how and where these principles should be applied. As a result:
All that is left is an empty shell of principle, and when principle comes to be applied, the appearance of commonality disappears, and human rights are exposed as culturally relative, deeply contingent on local politics and values. (McCrudden 2007, p. 372)
Paul Roberts also takes his discussions of international criminal justice research beyond mere legal rules and principles by highlighting the role of institutions and hybrid tribunals charged with developing and implementing the rules of international criminal justice. In his chapter, he explores ‘international criminal justice through a series of seven “concentric” circles, starting with the core activities of international criminal tribunals and fanning out into the hinterlands of transnational legal cooperation, national trials of international criminality, and related… scholarly commentaries and research’ (Roberts 2007, p. 364). Similarly, Harding and Leyland argue in their chapter that when comparing the role of constitutions in the political processes of more than one nation, we must remember that there is a ‘gulf between the formal constitution and the manner in which government is actually conducted’ (Harding and Leyland 2007, p. 323). We must therefore look beyond the written texts or designs of constitutions, to examine how constitutional rights and principles are implemented. Constitution is evidently a ‘political’ construct, so it is not difficult to argue that besides considering the text of the constitution, we also need to pay attention to the institutional arrangements and practices that are put in place to realise the rights, policy objectives and aspirations expressed therein. However, in this handbook, even comparative studies of areas such as commercial law, which have not been laden with specific political values or programmes, require gazing beyond the letter of the law. Commercial law has been traditionally presented and taught by commercial lawyers as a mere technical instrument for facilitating trade, which is in turn usually assumed to be ‘an activity not affected by cultural values’ (Foster 2007, p. 267). Nonetheless, Foster (2007) shows in his chapter that the application and development of commercial law is influenced by differences in cultural attitudes to commerce—differences which are determined historically. These ideas, arguably ‘old hat’ in socio-legal theory and law and society research (see, for example, Ehrlich 1936 and Pound 1943), are nonetheless expressed in the handbook with clarity of thought and intention by scholars, many of whom are versed in various substantive areas of law. They also appear to propagate the first contextualisation approach, which potentially generates data on how law as a system of rules operates in various societal conditions, or how it is mediated through various social institutions. It also aspires to close or minimise the disparity between legal rules and practices.
Some of the theoretical and methodological approaches we find in the handbook subvert the state-orientated positivistic methodology—what Michaels (2013) called ‘the methodological nationalism’—of traditional legal scholarship. Most contributors agree that comparative studies must be informed historically, acknowledge the plurality of forms of law and recognise ‘the various forms of non-state law, especially different kinds of religious and customary law that fall outside the “Westphalian duo”’7 (Twining 2007, p. 76; also see Menski 2007 and Cotterrell 2007). Comparative law must accommodate not only top-down approaches to the study of law, which treat the state as the source of law and normative ordering par excellence, but also bottom-up analyses of the various processes of harmonisation and unification of laws, which take into account how various actors and institutions experience and cope with legal change. In addition, comparative law should not, as it is often the case, focus either on the macro (e.g. global legal networks, EU law and international law) or the micro level (e.g. local municipal law and private law doctrine). Instead, it needs to take into account the numerous intermediary layers of legal institutions such as the NGOs and international tribunals that play an important role in connecting the micro and macro realities of law (Twining 2007, pp. 70–73). In order to achieve these objectives, a comparative study of law has to become empirical, for the type of institutional knowledge it seeks cannot be obtained purely through the conceptual analysis of legal rules, doctrine and principles. Finally, it has to broaden its scope of investigation by refusing to limit its general approach to the methodological and theoretical constraints of one single discipline. Thus, comparative legal research must be conducted in an interdisciplinary and, perhaps, even multidisciplinary manner.
2.2 Rethinking Comparative Law
As mentioned above, comparative law has reached the stage in its development where it needs to reconsider some of its central ideas and assumptions, such as legal families, the harmonisation of laws and the relationship between law and the state. The notion of legal families was originally developed using ideal types of Western legal traditions in order to classify and make sense of the legal systems of the world. Legal families were defined in terms of ‘law as rules’, and they evaluated and classified with the help of criteria such as substance, style, method, ideology, structure and sources belonging to common law, civil law and socialist law. This approach, which has dominated much of comparative law, has been criticised for being too concerned with the study of private law relations at the expense of other areas such as family, public and criminal law and for promoting a Euro-centric approach. Following the third contextualisation approach we outlined above, Menski notes that once we consider legal traditions beyond Europe, we observe that the law is often culturally embedded, pluralistic and, in some cases, not geared to the state. In such a pluralistic context, harmonisation is neither meaningful nor necessary or desirable:
Law is therefore not just about rules and their codified rule systems, but about a plurality of voices and values, and thus negotiations of difference and diversity at many different levels, and at all times. The book of law is never closed. Any form of law, even God-given Islamic law, is philosophically and practically perceived and applied as inherently dynamic and interactive (Menski 2007, p. 195)
Even within the EU, where regulations and directives hammer into member states the desirability to harmonise private law and to unify codes—a process aimed at creating a common European market and identity—we continue to find a great deal of diversity. Similarly, Smits (2007, p. 222) raises doubts on whether ‘harmonisation of private law really promotes the internal common market’ and if, as it is often claimed, it will substantially reduce the costs of trans-frontier contracts. He also believes that even the unified private law of the EU ‘will continue to suffer an inevitable fragmentation’ (Smits 2007, p. 227), for, ultimately, any unified private law has to be offered as an optional alternative to and remain organisationally dependent on existing national legal systems. At the micro level, differences in legal reasoning will persist, as civilian lawyers and common law lawyers will continue to think and reason differently. The only way one can promote convergence of the private laws of EU member states, and create a system which resembles the ius commune of the seventeenth and the eighteenth centuries, is by adopting a ‘non-centralist method’ (Smits 2007, p. 229), for example by devising a bottom-up perspective which starts with the Europeanisation of legal science and education. This means educating lawyers belonging to different jurisdictions to share a common legal training, speak the same language and think in European terms. This ideal is articulated through the European Commission’s efforts to harmonise judicial training within the EU: ‘Based on Mario Monti’s report’, writes Hammerslev (2013, p. 339) ‘the Commission combines the development of union law with the effective implementation of EU law, which guarantees legal predictability, security and the uniform interpretation of law throughout European member states’ (also see Monti 2010). Admittedly, this will be a slow and difficult process, and it will further reinforce the assumption that only ‘lawyer’s law’ is worth treating as the law proper; however, it is perhaps the only realistic method of bringing about a genuine European legal culture.8 The comparison with ius commune is an important one, for it reminds us of the importance of a common background and a shared language. In the discussions of harmonisation and legal cultures which are presented in Örücü and Nelken’s handbook, there is a tendency not to highlight the role of language (with the exception of passing remarks in Van Erp’s chapter on the process of law reform).9
Focusing on the possibility and desirability of the harmonisation and unification of private law in Europe, we easily lose sight of what lies beyond Europe. Besides common law and civil law, there are other ‘ancestors’ such as Chthonic, Talmudic, Islamic and Asian laws (Örücü 2007, p. 174; also see Glenn 2000), to mention just a few, which need to be taken into account when discussing legal families and traditions. More importantly, we need to acknowledge that there are no pure legal families and recognise that legal systems in certain geographic areas such as Europe, the Middle East or South America overlap, which therefore implies that all legal systems, to different degrees, are hybrids, i.e. cultural and legal mixtures consisting of various elements borrowed from different legal traditions and customs. It also means that legal systems and traditions are continuously changing and evolving through cross-fertilisation, fusion and borrowing from one another. Attempts to apply a fixed set of standards for evaluating legal families and legal systems of the world are bound to reify the otherwise dynamic social and cultural processes that produce and reproduce legal systems and traditions over time.
Menski and Smits distinguish themselves from comparatists who follow the first contextualisation approach. Instead, they follow the third type of contextualisation by broadening the scope of their analysis beyond the confines of the legal system. This enables them to ask new questions and ultimately to rethink comparative methodology. As we shall see in the next section, this approach is developed further by Patrick Glenn, Roger Cotterrell and Pierre Legrand, who also appear to emphasise the role of differences, rather than similarities, in comparative law.
2.3 The Politics of Difference
There is no single definition of comparative law and no consensus on its academic status, i.e. if it is a field of research, a discipline or just a method. On the one hand, we find black letter lawyers who use comparative law as a method for finding and juxtaposing two sets of legal rules and doctrines belonging to two different legal systems. On the other hand, we find scholars such as the contributors to Örücü and Nelken’s handbook, most of whom compare laws in their socio-cultural and historical contexts. The main body of comparative research lies between these two positions, whereby some studies are more sensitive to the empirical aspects of law and less concerned with the normative analysis of rules, whilst others are more concerned with comparing legal rules and doctrine and less so with law’s institutional makeup and cultural properties. There are therefore different ways of conducting comparative studies of law, and there are a number of different conceptions of what ‘comparing’ amounts to and aims to achieve.10
In his chapter, Glenn (2007, p. 92) argues that the Latin roots of ‘com-paring’ suggest ‘bringing together and keeping together, of equals, which are presumed to endure, throughout and beyond the process of com-paring’. Thus, according to Glenn (2007, p. 92), the logic of comparing is not that of separation but ‘living together in harmony and in a way respectful of difference…’ in what amounts to ‘an enduring process of peaceful coexistence’. Although Glenn makes no reference to Habermas, his argument that the process of comparison is intrinsically and unavoidably driven towards mutual coexistence, which in turn requires gaining greater understanding of the legal system of the ‘other’, is reminiscent of Habermas’s communicative action, according to which the use of language is orientated towards mutual understanding, even when the participants in the communication are acting instrumentally (Habermas 1984). However, when Glenn refers to the legal history of colonialism and argues that ‘the common laws [of the colonialists] yielded to local particularity, when local particularity so required’, and that ‘lawyers in the colonised world… engaged in an active process of reconciliation of law from the 15th century’ (Glenn 2007, p. 102), unintentionally as it might be, he draws our attention away from the imbalance of power which defined the relationship between the colonialists and their lawyers, on the one hand, and the colonised natives, their cultures and laws, on the other. It is indeed true that common law had to take notice of local variations and even accommodate ‘alien’ norms and practices in order to operate in colonised settings, but this did not imply the recognition of natives’ laws or cultures as equal to those of the colonialists. It did not, in other words, amount to transcending one’s own laws in order to engage discursively with and understand the laws of the ‘other’.11 As Cotterrell shows in his chapter, no mutual understanding or respect of the ‘other’ can be reached where one party uses its politically and/or culturally dominant position to control intercultural communications and dictate the terms and conditions of intercultural interactions.
In societies where the relationship between ethnic and cultural groups is defined by an imbalance of power in favour of one group, those who represent the politically dominant culture often demand that the politically less influential cultural groups assimilate themselves. This type of assimilation requires politically weaker cultures to submit to and internalise the values and worldviews of the politically dominant culture. In many cases, the internalisation of the prevailing culture’s value system can amount to denouncing one’s own cultural identity. Similarly, the politics of the differences in comparative law demands that politically less powerful legal systems harmonise their rules and institutions with those of the leading legal systems. The harmonisation and unification of laws brought about in this way is morally questionable, often blind to the socio-cultural mechanisms and historical context of law and its institutions, and it represents a form of domination. At the same time, many of the assumptions regarding the practicality and usefulness of harmonisation and unification remain unproven. One of these assumptions is that by making different legal systems similar, one automatically enhances communications between systems and moves them towards convergence and, at least in the European context, towards political and social unification. This reflects the efforts to harmonise laws and legal systems by a normative assumption: that law and politics must work hand in hand to enhance certitude and continuity in human affairs. This normative project is not based on the empirical reality of how late modern society is developing, and neither does it consider what the limits of law are under late modern conditions. As Legrand (1996, 1997) has argued, the harmonisation of legal rules does not necessarily lead to the emergence of a common legal understanding or the unification of legal practices, and it can actually take on different meanings in different legal systems. In Cotterrell’s words:
The same rule interpreted in two different national legal cultures will actually mean something different in each of them. So, legal harmonisation is illusory. There might be the standardisation of the letter of the rules but there will not be harmonisation of their meaning as law. (Cotterrell 2007, p. 141)
Similarly, the assumption that, by harmonising legal rules, one enhances law’s system efficiency, thus significantly reducing cost factors, is based on ‘anecdotal evidence’ and remains in want of empirical confirmation (a similar point is also made by Smits 2007 in the context of the convergence of private law in Europe). Perhaps more importantly, we should not forget that communication between legal systems and cultures can and does take place whenever the willingness to do so, and mutual respect for others’ autonomy and dignity, exist among the participants (a point also made by Glenn). Differences, admittedly, can be to one’s disadvantage when they are used as a basis for negative discrimination and exclusion. Being different, Cotterrell argues, is not bad in itself, and it is definitely not a handicap when the differences are acknowledged with respect. Productive integration does not require assimilation but mutual understanding, acceptance and respect. Some comparatists thus argue that ‘comparative law should shift its focus from seeking similarities (via harmonisation and unification) towards appreciating the virtues of legal diversity’ (Cotterrell 2007, pp. 136–137).