Elgar Encyclopedia of Comparative Law, Second Edition
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Elgar Encyclopedia of Comparative Law, Second Edition

Edited by Jan M. Smits

Written by leading authorities in their respective fields, the contributions in this accessible book cover and combine not only questions regarding the methodology of comparative law, but also specific areas of law (such as administrative law and criminal law) and specific topics (such as accident compensation and consideration). In addition, the Encyclopedia contains reports on a selected set of countries’ legal systems and, as a whole, presents an overview of the current state of affairs.
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Chapter 39: Legal culture*

David Nelken


The term ‘legal culture’ can be used in a variety of ways (Merry, 2012). Some of these are somewhat ill-defined, as when it is used as a rough equivalent to ‘legal system’ (Varga, 1992; Gessner, Hoeland and Varga, 1996; Bell, 2002); others are over-defined, as when it is limited to the techniques of exposition and interpretation employed by jurists and other legal actors (Rebuffa and Blankenburg, 1993). Those interested in the relationship between law and culture may wish to study law as a cultural artefact (Kahn, 1999), examine the way it becomes present in everyday life and experience, or through the media (Sarat and Kearns, 1993, 1998), or consider the role of law in accommodating cultural defences or protecting cultural treasures (Cotterrell, 2004). Both ‘law’ and ‘culture’ are also words whose interpretation and definition have illocutionary effects (‘this is the law’, ‘that behaviour is inconsistent with our culture’). The term ‘legal culture’ may itself be used by judges, or others, in the course of making claims about what is or is not consonant with a given body of law, practices or ideals. This use, as much prescriptive as descriptive, or prescriptive through being descriptive, can ‘make’ the facts it purports to describe or explain. Or scholars may use the term to capture what these legal actors are trying to do (Webber, 2004). Some uses of the term overlap with the notion of the ‘culture of legality’, the nearest, though not perfect equivalent, to which in English is ‘the rule of law’.

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