Three Approaches to Law and Culture

Menachem Mautner - Tel Aviv University

Two major developments in the second half of the twentieth century manifest the appropriation of the concept of culture by academic disciplines beyond anthropology, its traditional custodian. The first is the rise of the cultural studies movement since the mid-twentieth century. The second is the “cultural turn,” the process whereby scholars in the social sciences and the humanities began to employ the concept of culture in the closing decades of the twentieth century as an important tool for gaining insights in their research areas.

This appropriation of the concept of culture by disciplines beyond anthropology has not passed over the law.  Legal scholarship contains at least twelve approaches that connect the concepts of law and culture.  Some of these approaches may be dated to the first half of the nineteenth century and some to the first half of the twentieth century.  This article discusses three of the major approaches that connect culture to law. 

The first approach is that of the historical school, which arose in German jurisprudence in the first half of the nineteenth century.  The historical school views law as a product of the national culture, embedded in the daily practices of a people; law begins as culture and ends up as the law of the state.  According to the historical school, statutes are not supposed to create law; rather, the function of statutes is to reflect already existing social practices.  And, just as each people has its own language, expressing its unique national spirit, so also it has its own distinctive law.

The second approach, the constitutive approach, developed in American jurisprudence in the 1980s.  It views law as participating in the constitution of culture and thereby in the constitution of people’s minds, practices, and social relations.  This approach thus takes the influence between law and culture to work in the opposite direction to that assumed by the historical approach; in both, however, law is an inseparable dimension of social relations.

Since the 1980s, a rich scholarship has grown in the United States.  This scholarship perceives law as playing an important role in constituting individuals’ minds and, through that, the practices and social relations in which individuals are involved.

Legal realists of the 1920s normatively argued that, in dealing with legal problems, one needs to openly expose and discuss the normative meaning of possible legal solutions and the social implications of possible solutions.  This argument gave birth to an instrumental conception of law, which reached its peak in American law in the 1960s and 1970s, following the landmark 1954 case of Brown v. Board of Education.1  Following Brown, many legal scholars in the United States adopted the view that law may serve as an important instrument for effecting social change, particularly the attainment of higher levels of distributive justice and equality.  

The constitutive approach gained ascendance in American law in the 1980s, challenging the dominance of the instrumental approach in thinking about law among scholars dealing with the interrelationship between law and society.  The constitutive approach sees law as constitutive of culture, and consequently as creating meaning in the minds of individuals and constituting the practices and social relations in which they are involved.  Put differently, the constitutive approach holds that law, by its participation in the constitution of culture, also participates in the creation of the mental categories through which individuals perceive the social relations in which they take part, i.e., their status vis-à-vis other individuals, what others are entitled to do to them, what they are entitled to do to others, and the self-perceived identities of individuals and groups.

The constitutive approach, therefore, sees law as acting upon society in a much more profound way than does the instrumental approach.  According to the constitutive approach, law is not an entity distinct from society; it is embedded in the social relations that it constitutes, making the two inseparable. 

The third approach, which is present in twentieth-century Anglo-American jurisprudence, views the law created and applied by the courts as a distinct cultural system in its own right.  Practitioners of the law internalize this culture in the course of their studies and professional activity so that it comes to constitute, direct, and delimit the way they think, argue, resolve cases, and provide justifications.  

Four authors share a (not necessarily explicit) perception of the law created and applied by the courts as a distinct cultural system: Karl Llewellyn, James Boyd White, Pierre Bourdieu and Stanley Fish.  

The legal realists descriptively argued that legal formalism fails to accurately portray legal decision-making processes, even within the context of a legal system that adheres to the essentials of a formalist conception of law.  The realists demonstrated that, in many cases, adjudication is not premised on the application of a procedure but is, rather, an activity at whose core lie discretion and choice within the context of rich contents that are open to multiple conflicting interpretations.  

The descriptive argument of legal realism forced the realists to face “the devil of subjectivism”—the fear that, if formalism fails to accurately portray legal decision-making processes, then the true picture is that judges are not constrained in any way in resolving legal disputes and every judge may resolve a case any way he or she wishes.

Karl Llewellyn was a great admirer of the common law and of the Aristotelian practical-wisdom decision-making model on which the common law is premised.  Llewellyn was, therefore, very much disturbed by the claim that a post-formalist law is subjectivist law.  Early on in his career, he set himself the task of rehabilitating the credibility of the common law, a project that would demonstrate that common law decision-making processes meet a reasonable standard of objectivity, even within the context of a post-formalist conception of law that recognizes the important role played by judges in legal decision-making. Llewellyn accomplished that by presenting the law of the courts as a cultural system.

Llewellyn’s argument was premised on two pillars that to some extent overlap.  The first is the contents of the law and the modes of thought prevalent in the law.  Llewellyn argues that, in the course of their professional lives, lawyers internalize the contents of the law and the modes of thinking and argumentation prevalent in the law, and, therefore, these contents and modes not only pervasively and profoundly structure the way lawyers function in the law but also severely constrain the options available to them.  Thus, lawyers that operate in the same legal system will act in similar fashion, and no far-reaching variety will be present in their conduct when they handle similar legal problems.

The second pillar on which Llewellyn’s argument is premised is the professional culture within which lawyers and judges operate.  Llewellyn writes about law in terms of “craft”, i.e., a profession that employs a repertoire of “do and don’t” rules internalized by those operating in the field in the course of their professional training and functioning.  Llewellyn argues that the customary conduct of courts and the modes of justification prevalent in legal opinions embody such craft rules, and they channel judges into non-subjectivist conduct.  

A perception of the law of the courts as a distinct cultural system is present in the writings of James Boyd White, the founding father of the “law and literature” movement in American law and a prominent thinker on the relationship between law and culture.  White sees adjudication as a discursive process in which various normative options are raised, clarified and discussed; eventually, one of them is chosen.  According to White, the operation of law by courts is, therefore, “a continual process . . . [in which] [t]he community makes and remakes itself . . . over time.”

White also sees the law created and applied by the courts as a distinct cultural system, i.e., as a distinct system for assigning meaning to events that take place in the daily lives of individuals.  For White, lawyers are people who operate using the contents of the legal culture and who are capable of developing, in the context of that culture, arguments that suggest normative solutions to the problems brought to the resolution of the courts.  Therefore, law is the collection of resources a culture makes available to lawyers for the sake of thinking, arguing, and persuading.  The activity of lawyers is, first and foremost, argumentative, according to White, and a central trait of the legal culture is that it is argumentative—continuously developing and reshaping itself by presenting arguments in the context of the options available as part of the legal culture, which lawyers constantly make and remake.

Pierre Bourdieu, one of the greatest sociologists of culture in recent decades, argues that lawyers, the actors who function in the legal field, share a common habitus, so that what distinguishes them from non-lawyers is their abidance by the legal habitus.  This argument connects to another of Bourdieu’s arguments, that lawyers make their decisions not by following rules but rather by following the dictates of the legal habitus.

Stanley Fish views law as a practice taking place in the context of an interpretive community.  The similarity between Fish’s and Bourdieu’s perception of law is clear.  Bourdieu argues that a distinct habitus that distinguishes lawyers from non-lawyers activates legal actors.  Lawyers’ activity is characterized by a low level of consciousness; it takes place in accordance with a feel for the game, as opposed to rule-following, calculation, weighing, and deliberation.  Likewise, Fish argues that rules do not govern lawyers’ actions, but that professional conventions that prevail in their field of activity, which they usually internalize in the course of their professional socialization, do.  The similarity between this understanding of the nature of activity in the legal field and Karl Llewellyn’s understanding of law as craft is also obvious.

Beyond these three approaches to the relation between law and culture, at least nine additional approaches are identifiable in legal scholarship.  The first, “law and anthropology,” applies anthropological research methods to the study of law.  Second is the “legal culture” approach, which deals with how people view the legal system and people’s beliefs about the feasibility of taking legal action in order to promote their interests.  The third, the “legal consciousness” approach, deals with the legal knowledge invoked by people in the course of their daily social interactions.  The fourth, the “law and popular culture” approach, deals with law’s representations in popular culture, its influence over popular culture, and the influence of popular culture on law.  The fifth approach deals with the connection between law and the production of cultural artifacts, such as books, music, etc., and naturally focuses on intellectual property law.  The sixth approach, “law and multiculturalism,” is part of the voluminous literature published in the last four decades on multiculturalism and discusses the functions that law plays and the normative solutions it should adopt in culturally diversified countries.  The seventh approach looks at the connection between law and culture from the perspective of particular legal branches or doctrines.  The eighth approach, “law and culture in law and development,” discusses the role of cultural change in legal and economic development processes taking place in developing countries.  The ninth approach, law as an auto-poeitic system, views law as an autonomous system whose contents and communications affect social reality in a unique manner, mutually influencing each other and creating law’s contents from within.

This mapping is tentative and does not purport to be entirely inclusive; other schemes could perhaps be suggested.  I do hope, however, that it gives some preliminary idea of the widespread use of the concept of culture in the law, and that it invites further reflection on other possible ways of employing the concept of culture in legal scholarship to gain a richer understanding of the legal phenomenon.

Acknowledgments:

Menachem Mautner is the Danielle Rubinstein Professor of Comparative Civil Law and Jurisprudence at the Tel Aviv University, Faculty of Law.

This editorial is based on the article, Menachem Mautner, Three Approaches to Law and Culture, 96 CORNELL L. REV. __ (forthcoming 2011).

Copyright © 2011 Cornell Law Review.

  1. Brown v. Bd. of Educ., 347 U.S. 483 (1954).

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