Legal Cultures: Combining Diversity and Structure

Nelken (2014), p. 257.

Cotterrell (2019), p. 710.

See the second chapter of this volume.

This section builds on Koch (2020).

For an early attempt to define the concept, see Ehrmann (1976), p. 9, building on Friedman (1969).

Cotterrell (2019), p. 711.

Merry (2012).

Friedman (2006) refers to a global legal culture based on values such as individualism, equality, and human rights. Wieacker (1990); Helleringer and Purnhagen (2014); Hesselink (2002); critical to the idea of European legal culture are Gessner (1994), pp. 135 ff.; Grødeland and Miller (2015), pp. 1 ff.

Arold (2007, 2010) and Franklin (2010).

Whitman (2019); Mallat (2019); Grødeland and Miller (2015), p. 3.

Riles (2019). Grødeland and Miller (2015), p. 3.

Mankowski (2016), pp. 1 ff.; Cotterrell (1997); skeptical also Nelken (2014); Glenn (2004), p. 20.

Glenn (2000), pp. 45 f.

Kischel (2015), § 4, para. 47.

Örücü (2007), p. 59.

Friedman (2006), p. 189, very broadly refers to patterns of behaviour, opinions, or ideas regarding the legal system. Nelken (2007), p. 113, defines legal culture in the most general sense as ‘relatively stable patterns of legally orientated social behaviour and attitudes’ and adds that ‘[l]ike culture itself, legal culture is about who we are, not just what we do’; Van Hoecke and Warrington (1998), p. 498; Van Hoecke (2015), p. 22, fn. 30: ‘Legal Culture in a broad sense, encompassing tradition, usages, world view, paradigmatical framework and anything which is not law in the strict sense but influences legal thinking.’ Wieacker (1990), p. 5, regards legal culture as a product of history with three distinct features characterising the European legal culture: individualism, legalism, and intellectualism; see Cotterrell (2019), p. 714; Grødeland and Miller (2015), p. 2 (using Nelken’s definition).

Husa (2018), p. 433.

Husa (2015), p. 4.

Ibid., p. 2.

Nelken (2014), p. 260: ‘As many authors have pointed out, if we are to make use of the term for the purpose of carrying out empirical investigations, it is important to be able to operationalize it.’ See also Nelken (1997); Friedman (1997); Friedman (2006), p. 186 admits that the concept of legal culture is ‘troublesome’ and that there is a ‘serious problem of definition’. Van Hoecke and Warrington (1998), p. 499; Wieacker (1990), pp. 3 f.

This is also the conclusion of the comprehensive analysis of the term legal culture provided by Mankowski (2016), p. 533; almost all leading comparative scholars seem to agree on this. Nelken (2007), p. 127; Husa (2018), p. 422: ‘[…] legal culture is awkward to place in a genuinely global definition’. See also Helland and Koch (2014), p. 10.

Sunde (this volume).

Husa (2003), p. 432: ‘The requirement of ‘some common elements’ must be understood somewhat loosely in order to avoid a too-far reaching similarity assumption.’ Examples of such elements are institutionalised ways of norm production or commonly recognised accepted principles of the legal method that have been adopted by almost all contemporary legal cultures.

We agree, however, with Husa (2018), pp. 418 and 445 ff., who argues that the concept of legal families may be valuable when doing a legal dogmatic comparison with a strong focus on ‘law in books’. If the comparatist’s epistemological interest is concerned with ‘law in action’, Husa recommends a legal cultural approach too.

This has been emphasised as one of the main purposes of comparative law by several leading scholars. Husa (2015), p. 3, further elaborated on this from a macro perspective in chapters 9–11; Örücü (2007), pp. 53 ff. (‘understanding law in context’, ‘development of critical minds’); Örücü (2006), pp. 445 f.

See recently, on the macro-perspective of comparative research, Husa (2018).

Van Hoecke (2004), pp. 165 ff.; Zweigert and Kötz (1998), p. 40.

On the impact of legal pluralism and globalization on law, see Husa (2015), p. 55; Siems (2018), pp. 303 ff.; Faure and van der Walt (2010); Berman (2012); Kennedy (1997), pp. 546–547.

Sunde (this volume), Sect. 6.

Franklin (this volume), Sects. 2.1–2.2; Chernykh (this volume), Sect. 2.

Bubalo (this volume), Sect. 1.2; Vallejo Piedrahíta et al. (this volume), Sect. 1; Debaenst (this volume), Sect. 1.3; Jonsson (this volume), Sect. 2.

Bragdø-Ellenes and Nguyên Duy (this volume), Sect. 3.1; de Dios Marcer and Cañabate-Pérez (this volume), Sect. 2.4; Colombo and Kvestad (this volume), Sect. 4.4.3; Nylund (this volume), Sect. 2.1.

Wilson Jr (this volume), Sects. 2.2.1 and 2.2.2.

Ibid, Sect. 1.3; Soliman Hunter (this volume), Sect. 2; Koch (this volume), Sect. 1; Leiss (this volume), Sect. 1.2; de Dios Marcer and Cañabate-Pérez (this volume), Sect. 1.2.

Klimaszewska et al. (this volume), Sect. 5; Ristikivi et al. (this volume), Sect. 5; Koch (this volume), Sects. 4 and 5.1; Naime and Cervantes (this volume), Sect. 4.

Kjølstad et al. (this volume), Sect. 5; Graaf (this volume), Sect. 4.1; Franklin (this volume), Sect. 5; Soliman Hunter (this volume), Sect. 5.

Haitas (this volume), Sect. 6; Gebremariam and Kidanemariam (this volume), Sect. 6.1; Vallejo Piedrahíta et al. (this volume), Sect. 6; Jiang (this volume), Sect. 5.

Koch et al. (2017) (England & Wales, Scotland, France, Germany, Austria, Estonia, Finland, China); Koch and Sunde (2020) (adding Norway, Poland, Belgium, Italy, the United States of America and Australia). The publisher, Fagbokforlaget, has kindly permitted the reuse of the content of these articles in this volume, including also Sunde (this volume) (which has been updated and revised as well).