Transcript Law and Culture

Law and Culture
Zagreb
November 17, 2015
Culture
Edward B Taylor
whole
"That complex
which includes knowledge, belief, art, morals, law,
custom and any other capabilities and habits acquired by man as a member of
society. According to Kroeber the consensus of most social scientists is that
culture consists of patterns, explicit and implicit of and for behavior acquired
and transmitted by symbols constituting the distinctive achievements of human
groups including their embodiments in artifacts ;
the essential core
of culture consists of traditional ideas and
especially their attached values. Some sociologists
exclude material objects from their definition of culture. They include technical
knowledge about the artifacts.
Paul Valéry, ‘The European’
Paul Valéry,‘L’Européen’],
Partout où les noms de César, de
Gaius, de Trajan et de Virgile, partout
où les noms de Moïse et de St Paul,
partout où les noms d’Aristote, de
Platon et d’Euclide ont eu une
signification et une autorité
simultanées, Là est l’Europe.” .” : “Il
est remarquable que l’homme
d’Europe n’est pas défini par la race,
ni par la langue, ni par les coutumes
mais par les désirs et par l’amplitude
de la volonté (…).
• “
“Wherever the names Caesar,
Gaius, Trajan and Virgil,
wherever the names Moses
and St. Paul, wherever the
names Aristotle, Plato and
Euclid have a significance and
carry weight, that is where
Europe is
“It is remarkable that the people
of Europe are not defined by
race, nor by language or
customs, but by desires and
breadth of will (…)”.
Choice: Barbarism or Europe
a
Husserl lecture of May 1935 ‘Philosophy and the Crisis of European Humanity
• “Es ist nun auch ersichtlich, dass von hier
aus eine Übernationalität völlig neuer Art
entspringen konnte. Ich meine natürlich die
geistige Gestalt Europas. Es ist nicht mehr
ein Nebeneinander verschiedener Nationen,
die sich nur durch Handel- und
Machtkämpfe beeinflussen, sondern: Es ist
ein neuer Geist, von Philosophie und ihren
Sonderwissenschaften herstammend; ein
Geist, freier Kritik und Normierung auf
unendliche Aufgaben hin, er durchherrscht
das Menschentum, schafft neue, unendliche
Ideale!”
One can also see that it’s the starting
point of a new kind of community,
one which extends beyond nations.
I am referring, of course, to Europe
in a spiritual form. It is now no
longer a number of different
nations living alongside each other
and only influencing each other
through commercial competition or
power struggles, but it is: a new
spirit – stemming from philosophy
and the sciences based on it – a
spirit of free criticism, providing
norms for infinite tasks, and it
dominates mankind, creating new,
infinite ideals.”
:
Europe’s existential crisis can end in only one of two ways: in its demise, alienated from its own
rational sense of life, and lapsing into a hatred of the spirit and into barbarism; or in its rebirth
from the spirit of philosophy, through a heroism of reason (…)”. national cultures
themselves and of the close and complex relationships
between these highly diverse cultures which ensure the
cultural unity of Europe.
Cultural identity and unity amid the diversity of national cultures does not amount to the simple
indefinite expansion of an original cultural core. I see Europe’s cultural identity as a
tightly woven fabric. This fabric consists on the one hand of a warp thread carefully
stretched, which corresponds to the many strong national cultures, which
themselves have their own identity and find their origins in a distant past; on the
other hand, there is the weft thread, which represents the interwoven
transnational bedazzlement and admiration, the reciprocal influences crossing the
frontiers between cultures and between languages. I imagine this literary, artistic,
linguistic, European cultural fabric as drawing its beauty, its unity and its solidity from the sheer
number and diversity of its threads.
Law and legal systems are cultural products like language, music, and
marriage arrangements. They form a structure of meaning that
guides and organizes individuals and groups in everyday interactions
and conflict situations. This structure is passed on through socially
transmitted norms of conduct and rules of decisions that influence
the construction of intentional systems, including cognitive processes
and individual dispositions. The latter manifest themselves as
attitudes, values, beliefs, and expectations.
Political Culture
According to their level and type of political participation and the nature of people's attitudes toward politics, Gabriel
Almond and Sidny Verba outlined three pure types of political culture:
Parochial - Where citizens are only remotely aware of the presence of central government,
and live their lives near enough regardless of the decisions taken by the state. Distant and
unaware of political phenomena. He has neither knowledge or interest in politics. In general
congruent with a traditional political structure.
Subject - Where citizens are aware of central government, and are heavily subjected to its
decisions with little scope for dissent. The individual is aware of politics, its actors and
institutions. It is affectively oriented towards politics, yet he is on the "downward flow" side of
the politics. In general congruent with a centralized authoritarian structure.
Participant - Citizens are able to influence the government in various ways and they are
affected by it. The individual is oriented toward the system as a whole, to both the political and
administrative structures and processes (to both the input and output aspects). In general
congruent with a democratic political structure.
These three 'pure' types of political culture can combine to create the ‘civic culture', which mixes
the best elements of each
Almond, Gabriel A., Verba, Sidney The Civic Culture. Boston, MA: Little, Brown and Company, 1965.
The concept "legal culture" figures often and prominently in the
scholarship of the diverse disciplines of socio/legal studies. Political
scientists, for example, use the concept to account for variation in
the permissible legal delay in trials and in the behavior of judges and
lawyers, as well as to explain differences in rates of litigation.
Sociologists have found the concept useful for analyses of the ethics
and practices of legal organizations. And anthropologists, using a
more holistic approach, have characterized the legal cultures of
entire societies. Indeed, this notion "legal culture" is one of the most
general and ubiquitous concepts in the study of law and society.
Legal Culture: Practical Importance
And as more and more nations from Central and Eastern Europe (and perhaps
even to the eastern outskirts of Europe (e.g., Poland, Turkey) seek to join the
European Union
, the question of the diversity
of legal values becomes all the more
important for transnational legal
policy. Furthermore, the structures of
formal European legal systems vary; for
example, the system is common law in Britain and Ireland, civil law in France
and most of the Continent, with important (even if subtle) differences
among those systems stemming from civil law traditions. Thus, it seems
quite likely that the cultural values underpinning these systems differ as well.
Although ours is only an initial foray into the structure of legal values in
Europe, the importance of the issue may well justify the tentative nature of
our efforts.
Mesaurable Dimensions
James Gibson
Gregory Caldeira
Legal cultures in Europe Law&Society
Rewiew 30, 1, 1966
http://www.jstor.org/pss/3054034
1.
2.
Support for Rule of Law
Perceptions of the Neutrality
of Law
3.
Valuation of Individual
Liberty
What is legal culture? Dimensions of Legal
Values
(1) legal consciousness, which refers to specific attitudes toward legal
issues and institutions;
(2) legal cultural values, by which we mean more general values
relevant to the legal system but not necessarily closely connected to
it; and
(3) more general cultural values, such as a preference for
individualism over collectivism, trust in people,
Support for Rule of Law
Willingness to tolerate exceptions to the law is an attitude of some
importance in the operation of a legal system. At the extreme, of
course, nearly everyone agrees that there are some circumstances
under which law must be put aside in favor of justice or self-interest
or the need to craft immediate solutions to pressing political and
legal problems. At the opposite end of the continuum, nearly
everyone also believes that, in general, laws ought to be followed,
that citizens and rulers have a normative obligation to abide by the
rule of law, and that under most circumstances the universal and
equal application of the law should prevail. But between these two
extremes, there is a great deal of latitude, and it is this variability that
is of most interest to us. The extent to which citizens believe that
they ought to adhere rigidly to law is one aspect of legal values, and
it is quite likely that nations differ significantly on this dimension.
Rule of Law
The best indicator of attitudes toward the rule of law is the third item:
"If you don't particularly agree with law, it is all right to break it if you
are careful not to get caught." This is a cynical statement that in
essence cedes no moral authority to law. According to this item, the
most law-abiding people are clearly the British—nearly 93% of the
respondents disagree or disagree strongly with the statement.
Similarly, in Italy, The Netherlands, Ireland, Denmark, West Germany,
Spain, and East Germany, we find widespread disapproval of the idea
that it is legitimate to break laws Conversely, respect for law is lowest
in France, Luxembourg, and Belgium, where roughly one-quarter of
the respondents agree or agree strongly with the statement (Portugal
follows closely behind). There is certainly considerable cross-national
variation within the EU in attitudes toward the rule of law
Neutrality of Law
There are comparable differences in perceptions of the neutrality of
law. In West Germany and The Netherlands, more than 60% of the
respondents reject the proposition that "My interests are rarely
represented in the law; usually law reflects the views of those who
want to control me." In Denmark, a majority of the respondents also
rejects the statement; near majorities disagree with it in Great
Britain, Ireland, and France. On the other hand, a majority of the
respondents in Greece (and a near majority in Belgium) view law as a
repressive force. In all our countries, sizable minorities, at least,
assert that law reflects the interests of those who would control
them. Thus, these perhaps surprising results suggest that belief in the
neutrality of law is not necessarily widespread in Europe and
illustrate significant cross-national variability.
Perceptions of the Neutrality of Law
Various people may well perceive the role of law in society in quite
different lights. This view of law as consensual and neutral is
common within a variety of types of legal scholarship . Others,
however, may perceive law as an external, repressive, and coercive
force. Instead of embodying a broad social consensus to which
nearly all citizens subscribe, law may be seen as an instrument of
social control, as a means by which others advance their contrary
political interests. This view of law as an instrument of political
struggle, of political conflict, stands in sharp contrast to the
perception that law represents the consensual interests of society. In
the view that law in general represents the interests of the entire
society and that few will express a fundamental alienation toward
law and legal institutions.
Valuation of Individual Liberty
Earlier research has argued that a basic distinction among people is in
their willingness to tolerate disorder for the benefit of individual
liberty. This seems to be a basic social attitude, one stable over time
and closely associated with a variety of other political beliefs.
Moreover, struggles over the extent of individual liberty constitute
the very heart of most legal systems. Those who value liberty are
more likely to favor the universalistic application of the rule of law
and are less likely to view law as an instrument of repression and
social control.
Individual Liberty
the subdimension of legal values, we find much more consensus. The
best indicator of these attitudes—responses to the statement "It is
better to live in an orderly society than to allow people so much
freedom that they can become disruptive"—does not so clearly
divide the countries of Europe as do the other items. In fact, the
citizens of most of the countries endorse social order over potentially
disruptive liberty. More than three-quarters of the respondents favor
order in Portugal, Great Britain, and Ireland (and perhaps
Luxembourg and East Germany as well). Only in The Netherlands,
Italy, and Spain do we find at least 20% of the respondents expressing
support for liberty on this item.
Conclusion
The summary indicator of legal values suggests three major clusters of
countries within the EU. At one extreme we find Greece, Belgium,
Luxembourg, Portugal, and East Germany. These countries, regard for the
rule of law is not strong, support for individual liberty is weak, and alienation
from law is fairly common. Then, at the opposite end of the continuum lie
Denmark, The Netherlands, West Germany, and Great Britain. The peoples
of these countries tend to value individual liberty, to support the rule of law,
and to reject the proposition that law is an external, repressive force. In the
center, the cluster of Spain, Italy, France, and Ireland, somewhat mixed views
prevail. Although there are important differences within these three clusters,
we have some confidence that beliefs about law differ across these three
major groupings of countries*
The differences between the halves of the united Germany deserve special
attention. West Germans seem to look favorably on law, and are at least
somewhat positively oriented toward individual liberty. The East Germans,
contrariwise, tend not to view law as neutral, value liberty less, and are not
strong supporters of the rule of law. Like virtually all elements of the
"unified" German system, there are substantial differences between East
and West.
Implications
One of the biggest issues in any legal system is compliance. Do citizens,
organizations, and officials obey the law? Do they obey in conflictual
situations? We do not have measures of the compliance or
noncompliance of individuals. But we do have data on the
compliance of European governments with the treaties of the
European Union. The transnational character of the EU makes
compliance an especially salient issue; and, accordingly, the EU relies
on a number of procedures to bring about obedience to European
law. Together with the Court of Justice, the European Commission
serves as a bulwark of the integrity of the treaties, working to ensure
compliance with the various forms of European law.
Links
•http://www.youtube.com/watch?v=AV4
-D-eTULY
•http://www.youtube.com/watch?v=UjT
HLi_kYVs&feature=related