RETFRD RGANG 31 2008 NR.

4/123

23

Law and Culture

inside and beyond the Nation State
Roger Cotterrell ROGER COTTERRELL1

Summary: The question of how law should address 'culture' is pressing. But culture should not be seen as a unity. It consists of diverse components relating to ultimate values and beliefs, traditions, emotional allegiances and instrumental social relations and law relates to these components in different ways. Culture is a bounded unity only in the dangerous, pathological case of absolute cultural divisions which state law should oppose. The concept of legal culture is equally problematic when it suggests bounded cultural unities. But when culture is conceptualised in terms of fluid networks of community it becomes possible to analyse not only issues of multiculturalism, but also the ways in which transnational regulation serves social networks that extend beyond the boundaries of nation states. Keywords: Culture; legal culture; multiculturalism; harmonisation of law; transnational law

1 Introduction
This paper asks how legal scholarship should address the idea of legal culture and, more generally, problems of the relationships between law and culture.2 These are important topics, perhaps among the most pressing for legal scholarship today. Surely no-one in Denmark or in Britain who reads newspapers or watches television can doubt that culture in some sense has become a vitally significant issue for law. In Britain, as elsewhere, much has been heard about what international commentators have called, since 2005, the 'Danish cartoons' case.3 Correspondingly, Scandi1 2 3 Anniversary Professor of Legal Theory, Queen Mary and Westfield College, University of London. This is the text of a talk at the inauguration of the Centre for Studies of Legal Culture, Faculty of Law, University of Copenhagen, on March 7th 2008. See e.g. R. Tait, 'Three arrested in Denmark over plot to kill Muhammad cartoonist' The Guardian (London), February 13th 2008; J. Olsen, 'Danish papers reprint cartoon of Muhammad' The Guardian, February 14th 2008.

Jurist- og konomforbundets Forlag

24

RETFRD RGANG 31 2008 NR. 4/123

navian observers are, no doubt, aware of the furore in Britain that arose recently from statements by Rowan Williams, the Archbishop of Canterbury and head of the established Church of England, to the effect that he considers it inevitable that some aspects of Islamic shari'a law will eventually be recognised in United Kingdom law.4 His comments produced furious condemnation in the popular press and led to calls for his resignation. The particular aspects of culture relevant in both the Danish and the British cases are the commitments and sensibilities of religious minorities and the extent to which the law of the nation state should protect or reflect these commitments and sensibilities. The fundamental controversy is about how law should reflect, express or even control an aspect of culture. The issue attracts intense popular passions, no less than scholarly analysis. 'Law and culture' makes people angry. It has become prominent, in the cases just mentioned, because of a recognition that culture can no longer be taken for granted by law, or ignored by law; it can no longer be treated legally as uniform and unproblematic but must be seen as a plurality of not necessarily harmoniously co-existing forms. Our societies are multicultural, not mono-cultural. No doubt they never were mono-cultural. But, at least in Britain and perhaps in Denmark too, in times when population movements between nations were more limited it was easier for legal analysis to assume cultural homogeneity even while recognising great social diversity with regard to social class, social mobility and levels of wealth. The assumption was that culture in the sense of beliefs and values, allegiances and national sentiments, custom and traditions, was relatively uniform.5 When such an assumption exists, culture can be largely invisible to law. It does not need to be treated as a concept that legal analysis must address. But this legal myopia is no longer possible.

2 Dimensions of Culture
What does 'culture' mean? The Danish and British examples I have referred to, of culture 'invading' law, reflect the existence of a diversity of beliefs and ultimate values among members of the same national political society. In Britain it was a religious leader who advocated official recognition of practices reflecting minority religious convictions. Opposition came from those who saw a threat to national values reflected in law. The conflict was about beliefs and values. Similarly, the main stated
4 5 See e.g. A. Grice, 'Williams resists calls to resign over sharia row' The Independent (London), February 11th 2008; J. Brown, 'Williams tries to defuse row over sharia law but refuses to apologise' The Independent, February 12th 2008. See e.g. J. Citrin and J. Sides, 'Immigration and the Imagined Community in Europe and the United States, (2008) 56 Political Studies 33.

Roger Cotterrell

RETFRD RGANG 31 2008 NR. 4/123

25

justification for re-publishing the Danish cartoons was, according to press reports I have read, to defend ultimate values of freedom of speech. The value system of liberalism was set up on one side; and, on the other, precepts of a religious belief system. Again, culture appears as a matter of beliefs and values. But any concept of culture that might be adopted for the purposes of legal analysis would need to cover much more than beliefs and values. What culture seems in popular understandings to cover is extremely varied. Recently, news has come from Turkey that the hadith, the reported sayings and traditions of the prophet Muhammad, are being officially re-edited to remove accretions reflecting not the fundamental beliefs of Islam but the local understandings and practices of the particular communities and times in which the hadith were assembled.6 The aim is to separate fundamental beliefs of Islam from matters of mere contingent custom and tradition. Tradition is, indeed, often usefully distinguished from belief or values as a component of culture. In practice these components are often closely intertwined but analytically they are separable and it might be important in studying culture, and laws relation to it, to distinguish them. Laws capacity to respond to matters of belief and ultimate values to interact with, express or regulate such matters appropriately may be different from its corresponding capacity in relation to matters of custom and tradition.7 Tradition might be taken to include the many diverse kinds of inheritance that can be ingredients of culture for example, common language, common historical experience, collective memory, and the character of a shared geographical environment. Law has important challenges to face in regulating everyday conditions of coexistence arising from the mere fact of living together in the same environment, the same language group or the same neighbourhood. Its task here will often involve defining arenas of co-existence; that is, relevant environments and their boundaries. It must prevent friction across those boundaries, and between people who have to coexist inside them. But even these matters do not exhaust culture. Culture can refer not just to shared beliefs and values, and common traditions, but also to what anthropologists call 'material' culture levels of technological development and economic interaction. 'European culture', for example, may be a meaningful idea in several ways. It can
6 See e.g. R. Piggott, 'Turkey in radical revision of Islamic texts' BBC News, February 26th 2008 <http://news.bbc.co.uk/1/hi/world/europe/7264903.stm>; D. McGuire, 'Turkey modernizes interpretation of Qur'an' Radio Netherlands, February 29th 2008 <http://www.radionetherlands.nl/currentaffairs/080229-turkey-hadith>; M. Akyol, '[Sexism Deleted] in Turkey' Washington Post, July 16, 2006. <http://www.washingtonpost.com/wp-dyn/content/article/2006/07/14/AR2006071401381_pf.html> R. Cotterrell, Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (2006) pp. 123-4, 155-6.

Jurist- og konomforbundets Forlag

26

RETFRD RGANG 31 2008 NR. 4/123

refer to a sense of 'European values', however ambiguous and contested these may be; or a common European territory and history, although the experience of that history has been very different in different parts of Europe, and may divide as well as unify Europes populations. It can also refer to levels of technological development and forms of economic co-operation, development and integration that are typical in Europe but distinct from those in other parts of the world. Yet these economic and technological patterns are diverse and their effects not always unifying ones. Not to be neglected, either, are shared emotional attachments and rejections: culture can be a matter of loves and hatreds, attractions and repulsions, definitions of 'us' and 'them', that are not necessarily reducible to differences of tradition, belief or values; or to shared conditions of economic or other kinds of instrumental interaction. Thus, when people think of their cultural attachments they sometimes find that these are not entirely explicable in terms of beliefs/values, traditions or material interests (though efforts may be made to rationalise them in those terms). Also involved may be diffuse feelings of cultural allegiance or belonging, or of differentiation from what are seen as alien cultures. One can, for example, simply feel 'European', or not or feel European to varying degrees at different times and in different circumstances. There is, thus, no single relationship between law and culture, because culture is not a single thing not, in fact, a 'thing' at all. It indicates experiences or perceptions of a multiplicity of conditions. But some kinds of conditions can and should be distinguished for legal purposes and dealt with separately. Thus, laws relation to beliefs and values may often be very different from its relation to tradition (in the broad senses of tradition that I have indicated), or to networks of instrumental relations, or to matters of emotion. I think it is a central task for the study of law and culture to examine how, as a technical and policy matter, law can address each of the four general components of culture beliefs/values, traditions, instrumental (economic/technological) matters, and matters of affect (emotion) that I have identified. What differences are there in laws resources and capabilities when it addresses each of these components?8 In reality, networks of community life are built on complex combinations of these four broad components of culture, which are themselves expressed in innumerable forms. And so, in practice, these components do not exist in isolation from each other. Nevertheless, precision in juristic thought requires that at least these basic components should be analytically separated to consider their general challenges for law. Otherwise to try to relate law to a concept of 'culture' that defies precise definition is like trying to nail jelly to a wall it cannot be done.
8 I have discussed this in detail in Law, Culture and Society, op. cit.

Roger Cotterrell

RETFRD RGANG 31 2008 NR. 4/123

27

3 Legal Culture and European Jurists

What of legal culture? This has now become an important concept in legal scholarship. The idea of legal culture has tended to replace the old comparative law concept of 'legal families'. This distinguished, in Zweigerts and Ktzs authoritative modern formulation, between 'Romanistic' (primarily French-influenced), 'Germanic', 'Anglo-American' and 'Nordic' families of legal systems, and between these collectively and their exotic 'others' 'Law in the Far East' and 'Religious Legal Systems'.9 Merely listing these crude classifications is enough to signal the abject failure of the 'legal families' concept to recognise the cultural complexity of todays legal world. If the primary focus of the legal families approach in practice was to highlight broad differences and points of comparison between European legal systems, much literature on legal culture adopts a similar focus. But it has aimed to do more. The legal families approach focused on formal legal institutions and official legal doctrine in Lawrence Friedmans term, on 'mandarin materials of legal scholarship'.10 Legal culture literature, however, is concerned also with differences in the assumptions, perceptions, feelings and expectations about law and legal practice that exist in different contexts. Contributions to it by jurists still tend to show a 'mandarin' orientation, but sociolegal research on legal culture often adopts a broader focus.11 Up to now, something more than the needs of disinterested scholarship has inspired juristic invocations of the concept of legal culture. The idea has been used, for example, to claim that there are fundamental cultural differences (essentially in terms of legal professional outlook) between continental European civil law and English common law. This difference has then been said to make it impossible or undesirable to harmonise European private law.12 In other circumstances, legal culture has been invoked to support opposite arguments. Thus, claims that a European legal culture is already in existence,13 that its traditions can be reinvigorated,14 or
9 K. Zweigert and H. Ktz, An Introduction to Comparative Law, 3rd edn. (1998). 10 L. Friedman, 'The Concept of Legal Culture: A Reply' in D. Nelken ed., Comparing Legal Cultures (1997) p. 38. 11 See e.g. D. Nelken, 'Rethinking Legal Culture' in M. Freeman ed, Law and Sociology (2006); Nelken, 'Comparing Legal Cultures' in A. Sarat ed, Blackwell Companion to Law and Society (2004). 12 P. Legrand, 'European Legal Systems are not Converging' (1996) 45 International and Comparative Law Quarterly 52; Legrand, 'Antivonbar' (2006) 1 Journal of Comparative Law 13. 13 F. Wieacker, 'Foundations of European Legal Culture' (1990) 38 American Journal of Comparative Law 1. 14 R. Zimmermann, Savignys Legacy: Legal History, Comparative Law, and the Emergence of a European Legal Science' (1996) 112 Law Quarterly Review 576 at 600-1.

Jurist- og konomforbundets Forlag

28

RETFRD RGANG 31 2008 NR. 4/123

that European lawyers inhabit a common culture15 are used in various ways to support the feasibility of increasing European legal harmonisation. In these debates much is at stake: culture is seen either as a barrier dividing Europe legally or as a potentially unifying background. The argument in the latter case tends to suggest that divergences at the level of rules, between different European legal systems, may be less significant than they superficially appear, since the cultural trajectory of Europe is towards common solutions to legal problems, even if these solutions have so far been expressed in different conceptual terms in various national legal systems.16 Juristic concepts of legal culture have tended to emphasise lawyers' legal culture, the culture of professional legal practice. This has been seen as a matter of (largely) legal professional values and ways of thought (mentalits) that are said to inform all aspects of legal practice, often in hard-to-define ways. The claim is made by some writers that thinking like a lawyer is a fundamentally different kind of thinking in France, for example, as compared with England.17 But it is not clear why it should be assumed that there is a single monolithic national legal culture in these or other countries.18 Again, those who assert that differences in legal culture present a fundamental barrier to European legal integration have yet to show that legal cultures are necessarily impenetrable, rather than porous. Why should they not be understood (like culture, more generally) in terms of diverse, often contradictory experiences of shared beliefs, values, traditions, allegiances and interests? Why should it be wrong to think that these elements of culture can be modified, and, indeed, are probably being modified continuously, not least because of their impact on each other? Why not assume that parts of culture change as other parts stay constant? On the other hand, those who see culture as irrelevant to processes of legal harmonisation, or at least as no obstacle to it, tend to take a no less unsatisfactory view of legal culture. Much harmonisation is driven by the assumed needs of business. The needs that drive harmonisation activities are thought of largely as those of

15 O. Lando, 'Why Codify the European Law of Contract?' (1997) 5 European Review of Private Law 526 at 529-30: 'The peoples of Europe share the legal values of a Christian society and of a market economy which is under governmental control.' 16 Cf. R. Zimmermann, 'Comparative Law and the Europeanization of Private Law' in M. Reimann and R. Zimmermann eds., Oxford Handbook of Comparative Law (2006) p. 547. The legal sociologist Lawrence Friedman claims that what he calls 'modern legal culture' is producing a gradual convergence of legal solutions in 'modern, industrial, "advanced" societies', despite national doctrinal differences: see Friedman, 'Is There a Modern Legal Culture?' (1994) 7 Ratio Juris 117. 17 Legrand, 'Antivonbar', loc. cit. 30-2. 18 G. Samuel, Epistemology and Method in Law (2003) p. 50 (note 141).

Roger Cotterrell

RETFRD RGANG 31 2008 NR. 4/123

29

business networks built on the instrumental social relations of the market.19 In so far as the most general interests (for example, in profitable and efficient commerce) served by these networks are uniform, and harmonised law is considered only in relation to these interests, culture may seem an irrelevant consideration. Harmonisation may appear obviously useful for economic purposes promoting simplification of transactions for business actors who can readily see the point of it; trade is trade. But the approach to culture that I have suggested focusing not just on instrumental social relations, but also on elements of belief or ultimate values, tradition and affect demands that non-instrumental aspects of culture are not to be ignored. Harmonisation debates should address not only instrumental (economic) considerations, since laws relation to culture is a relation to all of its potentially intertwined components.20 The question is: how do instrumental and non-instrumental aspects of culture interrelate, especially when the likely effects of legal regulation are to be considered. Debates about the viability or desirability of harmonising European private law clearly occupy a very different intellectual terrain from the debates with which I began this paper those relating to the legal recognition of minority religious aspirations or sensibilities. Discussions of European legal harmonisation can certainly be impassioned. But they do not show the intensity of feelings that have made some controversies about laws relation to religious beliefs and to ultimate values not really debates at all, but more a matter of anguished protestations and unleashed fury on all sides.

4 Law and absolute cultural Divisions

Could it be said that discussions of legal culture, as reflected in the European harmonisation debates, involve an entirely different understanding of culture from that involved with, for example, the Danish cartoons case, or arguments about the possibility of a European shari'a law? If legal culture is specifically lawyers' legal culture, then what it embraces in terms of the four components of culture identified in this
19 C. Von Bar, O. Lando and S. Swann, 'Communication on European Contract Law: Joint Response of the Commission on European Contract Law and the Study Group on a European Civil Code' (2002) 10 European Review of Private Law 183 at 198-9. 20 Cf E. Banakas, 'The Contribution of Comparative Law to the Harmonization of European Private Law, in A. Harding and E. rc eds, Comparative Law in the 21st Century (2002) p. 185, noting resistance to harmonisation on the grounds that private law 'is more than competition in the market or corporate and commercial transactions. It is also about intimate, very personal aspects of personal life, that judges are convinced are better dealt with in the environment of the local culture and tradition.'

Jurist- og konomforbundets Forlag

30

RETFRD RGANG 31 2008 NR. 4/123

paper are the constraints and possibilities arising from the common interests, traditions, beliefs, values and allegiances of lawyers particular legal professional groups, rather than those that exist in the wider society. On this view, legal culture might be expected to be a narrower, quieter, often much less diverse, topic for inquiry than relations between law and culture in a larger sense. Thus, it is possible for someone such as Professor Ole Lando of the Copenhagen Business School, a leading figure in the Commission on European Contract Law over more than two decades, and in other harmonisation projects, to see shared values and a 'common attitude' among lawyers from different European countries (including Britain) as the key to success in legal harmonisation. several factors have caused this common attitude,' writes Lando. 'The similar economic and political structure of the [EU] Member States is one. Another is their common cultural heritage. All Europeans share the Christian ethic, and have been influenced by Roman law and the great moralists. The milieu in which both judges and law professors are raised and live is also a factor. Most of the guardians and preachers of our law and justice grew up in well-to-do bourgeois homes with moral traditions. In Europe, the middle class has been the guardian of ethics, and so have the parents of the judges and professors.... Thus, the legal values of the European brotherhood of lawyers are very similar.'21 The image is surely striking: inside the harmonisers' conference room the quiet processes of legal professional negotiation and agreement go on. The clamour from an increasingly noisy multicultural population outside does not disrupt this calm. Nor should it, necessarily: the wider constituency for which the harmonisation of contract law in Europe is relevant may be primarily the constituency of business a network of mainly economic, instrumental social relations of community that might be assumed to be not very directly linked to matters of belief or ultimate values, tradition or affect. But if this network of social relations is, indeed, of a particular, limited kind (a matter that would require empirical study) it is, nevertheless, a wider constituency beyond the legal professional one and it might be dangerous to see legal culture as a purely legal professional culture, rather than one that always relates to constituencies in society beyond the lawyers' professional sphere. Indeed, it might be reasonable to speculate that this professional sphere itself is likely to change 'with all deliberate speed' 22 to reflect increasingly the cultural diversity of the wider society.
21 O. Lando, 'Optional or Mandatory Europeanisation of Contract Law' in S. Feiden and C. U. Schmid eds, Evolutionary Perspectives and Projects on Harmonisation of Private Law in the EU EUI Working Paper LAW 99/7 (1999) pp. 20, 21, 22. 22 The famous phrase of the United States Supreme Court in Brown v Board of Education, 349 US 294 (1955), seems appropriate to imply the apparent ambivalence of efforts to effect such a change and its slow pace, at least in Britain. Yet the change is undoubtedly under-

Roger Cotterrell

RETFRD RGANG 31 2008 NR. 4/123

31

In sociology of law, the best work on legal culture, I think, has been research that tries sensitively to consider variations in both professional and popular legal experience, holding in focus the widest possible range of components of culture and considering how these interrelate in particular contexts. It has been most effective when it illustrates the sheer complexity of cultural variation and the problems of interpreting this.23 Otherwise scholarship on law and culture is often particularly rewarding when it focuses on specific juristic foci of cultural difference such as conflicts or contrasts of values or beliefs,24 or questions of how far elements of tradition (including, for example, minority languages) should be protected by law, or of how far law can sustain legitimacy and attract allegiance in culturally diverse societies. Juristic tasks of interpreting culture will be most manageable when culture is broken down into its component parts as this paper has advocated. The effect will be to show relations of law and culture as complex, diverse and often contradictory, but central for legal scholarship since they are expressed in so many problems of contemporary regulation. It might be asked: why not avoid referring to culture and merely focus on its juristically distinct components beliefs/values, tradition, instrumental (especially economic) relations, and emotional allegiances and resistances? After all, it is conflicts around these matters that cause problems for law and that law needs to address: culture, as such, is too vague an idea for law to address as a unity. But culture and legal culture remain useful ideas to suggest as a kind of hypothesis that complex and variable linkages exist between the elements that have been separated out, and that these linkages need to explored in particular contexts. Also, to think of all four basic aspects of culture together is especially important when conditions arise in which the four aspects increasingly tend to mirror each other. For example, a particular social group may come to be divided from other social groups not only perhaps by its different beliefs and its different customs, but also by its distinct, self-contained economic networks, and perhaps by its emotional hostility to other groups or by becoming the focus of such hostility. Different aspects of culture may then reinforce each other very strongly, not necessarily because the group in
way. The emergence of critical race theory in the United States reflects increasing cultural diversity in American laws professional field. 23 See e.g. D. Nelken, 'Beyond Compare? Criticizing "The American Way of Law"' (2003) 28 Law and Social Inquiry 799; Nelken, 'Italian Juvenile Justice: Tolerance, Leniency or Indulgence?' (2006) 6 Youth Justice 107. 24 See James Whitmans controversial but imaginative comparative studies of fundamental legal values: 'Two Western Cultures of Privacy: Dignity versus Liberty' (2004) 113 Yale Law Journal 1151; Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe (2003); 'Enforcing Civility and Respect: Three Societies' (2000) 109 Yale Law Journal 1279; and G. S. Friedman and J. Q. Whitman, 'The European Transformation of Harassment Law: Discrimination versus Dignity' (2003) 9 Columbia Journal of European Law 241.

Jurist- og konomforbundets Forlag

32

RETFRD RGANG 31 2008 NR. 4/123

which this occurs chooses or wishes to exist in relatively pervasive cultural separation but because circumstances of interaction with other groups somehow promote this. In this situation a cultural division becomes dangerously nearly absolute, reinforced across all or most of the four basic aspects or dimensions of culture. The result is that different social groups seem to tend increasingly to inhabit selfsufficient cultures of their own. Culture becomes something with definable boundaries, and cultural difference becomes a matter of invisible (but increasingly impregnable) walls and fences. Indeed, this may lead, if all productive communication becomes impossible, to real walls and fences designed to keep populations apart.25 It is surely one of the tasks of law to adopt regulatory strategies that help to avoid, at all costs, this kind of development in a national political society. In my view multiculturalism is a healthy and natural social phenomenon where it amounts to a wide diversity of beliefs, traditions, allegiances and interests all linked together and relatively integrated through the diverse interactions of numerous networks of community. But the creation of absolute cultural divisions would amount to the reification of culture as the life of a social group largely separated from the larger national society. Laws primary strategies in such circumstances should be to foster cross-cultural communication in every way possible. Law, itself, should communicate and, where appropriate, enforce certain ultimate values of respect for individual autonomy and dignity that encourage and protect social interaction and participation by all individuals in the national political society as a whole.26 What mile Durkheim understood as moral individualism27 universal respect for others as individual human beings still remains the necessary basis for respecting (and communicating across) cultural differences, within a framework of complex solidarities appropriate to contemporary European societies.

25 See B. S. Turner, 'Managing Religions: State Responses to Religious Diversity' (2007) 1 Contemporary Islam 123 at 133-6, on the creation of social enclaves', in contemporary societies. 26 See R. Cotterrell and A.-J. Arnaud, 'Comment penser le multiculturalisme en droit' (2007) 23 L'Observateur des Nations Unies (Revue de l'Association Francaise pour les Nations Unies, Section Aix-en-Provence) 7; Cotterrell, 'The Struggle for Law: Some Dilemmas of Cultural Legality' International Journal of Law in Context, forthcoming. 27 . Durkheim, 'Individualism and the Intellectuals' [1898] transl. by S. and J. Lukes, in W. S. F. Pickering ed., Durkheim on Religion: A Selection of Readings with Bibliographies (1975); R. Cotterrell, mile Durkheim: Law in a Moral Domain (1999) ch.7.

Roger Cotterrell

RETFRD RGANG 31 2008 NR. 4/123

33

5 Culture inside and beyond the Nation State

There is another important reason for holding on to the idea of culture in relation to law, and also for making ideas of legal culture a focus for juristic study. The concept of culture marks out, even if only provisionally, a terrain which legal scholarship can occupy that takes it beyond any narrow limitation to the legal categories established by the law of national political societies. In two ways this paper has already attempted to illustrate this. Firstly, in considering the relations of law and culture in connection with the challenges of multicultural societies, legal scholarship is led to recognise culturally diverse legal aspirations inside the nation state. Discussion is no longer just in terms of formally equal citizens before the law. Instead, legal inquiry is encouraged to consider the variety of forms of group life within the national political society and their impact on the situation and expectations of individuals. A focus on law and culture gives a further dimension to legal scholarship. It does not necessarily displace any of the existing approaches of legal study, but it may provide a useful supplement to them. Secondly, debates about legal culture in connection with harmonisation projects focused especially on European private law suggest a different kind of extension of the legal imagination. Here culture is invoked to suggest what can be similar and what can be different in legal thought and experience across national boundaries. The focus is not on cultural similarities and differences inside the nation state in their relation to law, but on these kinds of similarity and difference in relation to cultural networks and groups that are not necessarily limited by the borders of particular nation states. A focus on the relations of law and culture holds out the promise of an escape from the limitations of thinking of law solely in terms of uniform nation-state jurisdictions. Culture, appropriately conceptualised in the way I have suggested, is an idea that points to new emphases in the juristic study of patterns of diversity within national societies. But it also points to the kinds of conditions that juristic scholarship should study when it seeks the foundations of emergent, or newly significant, kinds of transnational law.28 These varied kinds of law (for example, international human rights law, international commercial and financial law, European Union law, and many less clearly definable emergent forms of transnational regulation) may need foundations that can be thought of as cultural. In other words, they may need support from social networks and groups that are linked together by aspects of culture by shared beliefs or values, by tradition in various forms, by common or convergent interests uniting people instrumentally, or by more diffuse allegiances and attachments.
28 R. Cotterrell, 'Transnational Communities and the Concept of Law' (2008) 21 Ratio Juris 1.

Jurist- og konomforbundets Forlag

34

RETFRD RGANG 31 2008 NR. 4/123

Thus, it is possible to speak about business cultures,29 legal and other professional cultures, human rights cultures and so on. All of these can exist on a transnational basis and all are potentially carriers of law in the sense that cultural groups or networks of social relations of community can themselves foster or inspire the regulation they require. They may be important in giving (or refusing) legitimacy to law confirming (or denying) its moral authority and its practical meaning and significance. Insofar as social networks and groups recognise the binding force of transnational regulation, invoke it and rely upon it, they supply the input of interests, demands, controversies and experiences that allow it to develop. The main obstacle to invoking culture usefully in these kinds of contexts is that comparative lawyers, legal sociologists and other scholars of law still often try to use the concept of culture as if it designates a single well-understood phenomenon that law can address directly. So, when comparative lawyers claim that differences in legal culture obstruct the harmonisation of law across national borders (or conversely that the existence of a European culture makes the creation of pan-European law feasible) they rarely specify precisely what they mean by culture the scope of the term, how one culture is to be distinguished from another, and how culture acts as a cause of legal developments or a force undermining them. The problem, long recognised by anthropologists and sociologists, is that culture, because of its conceptual imprecision, is not directly useful in identifying causes of or constraints on particular social developments including legal developments. The solution is not to discard the concept but to use it to highlight provisionally a range of important social phenomena awaiting analysis and comparison phenomena that can be conceptualised in terms of social relations that unite or divide people in groups and networks. What is vital is to recognise that the bonds (of interest, belief/values, tradition and affect) that hold together these social relations are radically different in nature from each other, and are likely to have very different relations to law. Thus the portmanteau concept of culture should be disaggregated to reveal the diverse types of social relations of community that it implies. It is laws relation to these types of community that should be emphasised when the links between law and culture are being studied. Because laws instrumental uses and its relevance for instrumental (especially economic) social relations are always prominently recognised in contemporary legal scholarship,30 a juristic focus on 'culture' probably has most significance in putting back into the centre of attention laws links to matters of tradition, affect, belief and
29 O. Lando, 'Comparative Law and Lawmaking' (2001) 75 Tulane Law Review 1015 at 1023: 'international business is more and more becoming a cultural circle of its own where the commercial practices have been influenced by the great trade nations.' 30 See e.g. B. Z. Tamanaha, Law as a Means to an End: Threat to the Rule of Law (2006), for recent claims about the proliferation of legal instrumentalism.

Roger Cotterrell

RETFRD RGANG 31 2008 NR. 4/123

35

ultimate values. In doing so, it not only suggests that these matters are as important for legal analysis as instrumental-economic considerations, but that the latter should be understood in the light of their interrelation with the former. So, the idea of culture, despite its vagueness, usefully focuses attention on the sheer range of phenomena that shape and reinforce social relations of community in different forms. Culture is best thought of in terms of complex networks of community networks not fixed in some static, unchanging way, but flexibly structured and articulated through ever-shifting bonds of communal social relations. The more these networks are strong and stable the more meaningful will 'culture' seem as a concept to refer to social life within them. Thus, law, in so far as it supports, protects and expresses social relations of community, helps to build culture. Yet culture remains a fluid, ever-changing aggregate of diverse networks of social relations.

6 Conclusion
One implication of the arguments in this paper is that studies of law and culture encompass a broad field indeed, they designate not so much a special field of legal scholarship as an approach to legal scholarship in general; an approach that emphasises laws place in and contribution to networks of social relations of community. The study of law and culture relates to the whole range of diverse components of culture. It focuses on laws contribution to sustaining and integrating social networks that, because of their relative stability and distinctiveness, are readily thought of as 'cultural'. A further implication of my argument is that this 'cultural' approach to legal study is very important for legal scholarship today. After the demise of the historical school of jurisprudence, the relations of law and culture were neglected for too long in mainstream legal scholarship. Now they should be placed in the foreground again, but with a strong emphasis on empirical studies of cultural phenomena. Legal anthropologists showed the way and they still produce very important work in this field. Many comparative lawyers now treat the concept of legal culture as central to their concerns. In my view, however, they should liaise with legal sociologists and anthropologists to make their invocations of 'culture' rich and empirically detailed.31 There is no doubt that the idea of culture is currently important in many legal fields. We are familiar today with conceptions of cultural rights, legal issues of protection of cultural heritage, controversies over cultural defences, and many other indications that a general consciousness of 'culture' has invaded con-

31 See Cotterrell, Law, Culture and Society, op. cit. ch. 8.

Jurist- og konomforbundets Forlag

36

RETFRD RGANG 31 2008 NR. 4/123

temporary legal thought.32 In these circumstances, a new emphasis on the study of law in connection with the diverse networks of social relations that we associate with the idea of culture could hardly be more timely. Frfattarupplysning: Roger Cotterrell is Anniversary Professor of Legal Theory, Queen Mary and Westfield College, University of London.

32 Ibid, pp. 97-102.

Roger Cotterrell