Edited by Alain Marciano and Jean-Michel Josselin
Chapter 3: Legal culture as (natural?) monopoly
Anthony Ogus INTRODUCTION Comparative lawyers have become increasingly obsessed by notions of ‘legal culture’.1 By this, they mean ‘those historically conditioned, deeply rooted attitudes about the nature of law and about the proper structure and operation of a legal system that are at large in the society’.2 Some authors have drawn on the idea to argue that harmonization between two fundamentally different legal cultures (such as those of the civil law systems of continental Europe on the one hand and those of the common law systems of the Anglophone world on the other) is inherently impossible: ‘transplants’ will be rejected.3 And, of course, such views have important practical implications in an age when considerable efforts are being made to integrate legal systems, particularly in the European Union. Undeniably there are problems of mutual adaptation between legal systems with different traditions but the views of the ‘culture’ theorists ought to be treated with caution. This is not only because they exaggerate the problems, but also, and more importantly, because they fail to recognize the economic forces which lie behind the phenomena they are describing. The very language of culture might seem to invoke values which defy assessment in terms of willingness-to-pay and which therefore transcend conventional market processes.4 But, however elevated the discourse, its opacity should not be allowed to conceal the fact that there are groups who stand to profit materially from treating resources as culture. In this chapter, I argue that legal culture should be construed as a situation...
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