Comparing Legal Cultures

283 Pages·1997·57.42 MB·English

by  David Nelken (editor)

Comparing Legal Cultures
This volume is dedicated to the
incomparable Mrs Isla Dow
Comparing Legal Cultures
Edited by
DAVID NELKEN
Distinguished Professor of Sociology, University of Macerata, Italy and
Distinguished Research Professor of Law, University of Wales at Cardiff
~l Routledge
~ ~
Taylor & Francis Group
LONDON AND NEW YORK
First published 1997 by Ashgate Publishing
Published 2016 by Routledge
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Copyright © 1997 David Nelken
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means,
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or in any information storage or retrieval system, without permission in
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Product or corporate names may be trademarks or registered trademarks,
and are used only for identification and explanation without intent to infringe.
ISBN 9781855218987 (pbk)
British Library Cataloguing in Publication Data
Comparing legal cultures. - (Socio-Iegal studies)
I.Sociological jurisprudence 2.Culture and law
3.Sociological jurisprudence - Congresses 4.Culture and law
- Congresses
I.Nelken, David
340.1'15
Library of Congress Cataloging-in-Publication Data
Comparing legal cultures / edited by David Nelken.
p. cm.
"Socio-Iegal studies series."
ISBN 978-1-85521-718-8
l. Culture and law. I. Nelken, David.
K487.C8C66 1996
340' .115-dc20 96-43132
ClP
Transfered to Digital Printing in 2010
Contents
List of Contributors; Acknowledgement Vll
Comparing Legal Cultures: An Introduction
David Nelken
PART I INVOKING LEGAL CULTURE: DEBATES AND
DISSENTS
1 The Concept of Legal Culture 13
Roger Cotterrell
2 The Concept of Legal Culture: A Reply 33
Lawrence M. Friedman
3 Civil Litigation Rates as Indicators for Legal Cultures 41
Erhard Blankenburg
4 Puzzling Out Legal Culture: A Comment on Blankenburg 69
David Nelken
5 Comparative Criminal Law for Criminologists: Comparing for
What Purpose? 93
Malcolm M. Feeley
6 Sociological Uses of the Concept of Legal Culture 105
Carlo Pennisi
7 Comparing Legal Cultures in the Quest for Law's Identity 119
Michael King
v
vi Contents
8 Gender and Nature in Comparative Legal Cultures 135
Hanne Petersen
PART II DISCLOSING LEGAL CULTURE: THE
PRODUCTION OF DIFFERENCE
9 An Entrepreneurial Conception of the Law? The American
Model through Italian Eyes 157
Maria Rosaria Ferrarese
10 Prosecution in Two Civil Law Countries: France and Italy 183
Carlo Guarnieri
11 The Enigma of Japan as a Testing Ground for Cross-Cultural
Criminological Studies 195
Setsuo Miyazawa
12 Patients' Rights, Citizens' Movements and Japanese Legal
Culture 215
Eric A. Feldman
13 Remembering and Forgetting: The Birth of Modern Copyright
Law 237
Brad Sherman
Index 267
List of Contributors
Erhard Blankenburg is Professor of Law at the University of Amsterdam,
Holland.
Roger Cotterrell is Professor of Legal Theory at Queen Mary Westfield
College, University of London, UK.
Malcolm M. Feeley is Professor of Law at the University of California at
Berkeley, USA.
Eric A. Feldman is a Research Fellow at Yale University, USA.
Maria Rosaria Ferrarese is Professor of Sociology of Law at the Univer-
sity of Trento, Italy.
Lawrence M. Friedman is Marion Rice Kirkwood Professor of Law at
Stanford University, California, USA.
Carlo Guarnieri is Professor of Comparative Judicial Systems at the Uni-
versity of Bologna, Italy.
Michael King is Professor of Law at BruneI University, UK.
Setsuo Miyazawa is Professor of Law at the University of Kobe, Japan.
David Nelken is Distinguished Professor of Sociology at Macerata Univer-
sity, Italy and Distinguished Research Professor of Law at the University of
Wales at Cardiff, UK.
Carlo Pennisi is Professor of Sociology of Law at the University of Catania,
Italy.
vii
Vlll Contributors
Hanne Petersen is Professor of Law at the University of Copenhagen,
Denmark.
Brad Sherman is Professor of Law at Griffiths University, Brisbane, Aus-
tralia.
Acknowledgement
The Law and Society Review is thanked for its permission to reproduce that
part of Chapter 3 which appeared in a revised version in 1994.
Comparing Legal Cultures: An
Introduction
David N elken
Given the limited progress which has been made in comparative sociology
of law since the writings of Max Weber, little justification is needed for
seeking to compare and contrast legal institutions and processes in different
societies and cultures. But the task of understanding the 'other' - in a world
of ever-increasing contacts and mutual influences - is much more demand-
ing than merely juxtaposing descriptions of the operations of law or atti-
tudes to law in different countries. The contributions in this volume were
first presented at a workshop on 'Comparing Legal Cultures' in Macerata
University in Italy on 18-20 May 1994, organized by the Department of
Social Change, Legal Institutions and Communication (under the auspices
of the ISAJRCSL).l They discuss central features of law in countries as
different (or as similar) as Britain, France, Germany, Holland, Italy, Japan
and the USA. But their special concern is with the theoretical point of such
exercises: the aim of this collection is to consider the possibilities and
advantages of using comparative work so as to clarify the meaning and
character of legal culture.
The attempt to use a comparative perspective to grasp legal culture re-
quires the ability to transcend competing approaches and methodologies
which threaten otherwise to oversimplify what is at stake (Nelken, 1995).
Some of these alternatives are false dichotomies insofar as they are rarely
found in the pure form: this is certainly true for the opposed dangers of
ethnocentrism and relativism and, to a large extent, also applies to the
choice whether to aim at useful as opposed to strictly scientific types of
comparative work. Other dilemmas are more real. What is culture? Should
we concentrate on the world system, on national legal cultures or on specific
institutions? Should we take culture to be the set of behaviours and ideas of
a given population or embrace more post-modern accounts of culture as a
constructed flow of images?2 What about legal culture? Are we interested in