The document provides an overview of topics to be covered in a course on comparing legal cultures over multiple days. Day one will introduce the concept of legal culture and compare examples from different countries. Main issues discussed include defining culture, comparing legal systems versus legal traditions, and approaches to understanding foreign legal cultures. Methods of comparing legal cultures and addressing legal pluralism are also covered.
2. Day One – Plan for the course – reading assignments
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5. The Concept of culture The word culture, from the Latin colo, -ere, "to cultivate", generally refers to patterns of human activity and the symbolic structures that give such activity significance. Culture has been called "the way of life for an entire society." As such, it includes codes of manners, dress, language, religion , rituals , norms of behavior and systems of belief A common way of understanding culture sees it as consisting of four elements that are "passed on from generation to generation by learning alone": 1 values comprise ideas about what in life seems important. They guide the rest of the cultur 2 norms consist of expectations of how people will behave in various situations. Each culture has methods, called sanctions , of enforcing its norms. Sanctions vary with the importance of the norm; norms that a society enforces formally have the status of laws 3 institutions are the structures of a society within which values and norms are transmitted 4 artifacts . . . —things, or aspects of material culture—derive from a culture's values and norms . (from Wiki)
6. Subcultures Large societies often have subcultures , or groups of people with distinct sets of behavior and beliefs that differentiate them from a larger culture of which they are a part. The subculture may be distinctive because of the age of its members, or by their race , ethnicity , class or gender . The qualities that determine a subculture as distinct may be aesthetic , religious , occupational , political , sexual or a combination of these factors. But is subculture a value-loaded concept? Even if it is neutral, is it useful at all? Culture change is complex and has far-ranging effects. Sociologists and anthropologists believe that a holistic approach to the study of cultures and their environments is needed to understand all of the various aspects of change. Human existence may best be looked at as a "multifaceted whole." Only from this vantage can one grasp the realities of culture change. Culture and Symbols Symbols make culture possible, reproducible and readable. They are the "webs of significance" , they give regularity, unity and systematicity to the practices of a group. Geertz: C is (1) a system of symbols (2) reinforced by ceremonial action which acts (3) to establish powerful, pervasive and long-lasting moods and motivations in men.
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Hinweis der Redaktion
Other ways to conceptualise this evolution from LP1 to LP 2, see Teubner, Rethinking LP, 13 Cardozo LR 1992: 1443, while in old pluralism the main institutional link was the legal formalization of diffuse social norms, the new LP is characterized by specialised institutions that bind law to a multitude of functional subsystems and formal organizations LP1 is: legalistic, it is a problem of State law’s recognition of subordinate normative orders like regional or corporate regimes Hierarchical; it identifies “legal levels” with a stratified structure of society institutionalist; LP 2 authors, Galanter, Sally Falk More, Snyder, Boaventura, Fitzpatrick, Griffiths, Henry- The new LP “juridifies” specialised discourses instead of diffuse social norms in the lifeworld of groups and communities
Brian Tamanaha: “ The monopolization of law by states in Western Europe reduced legal pluralism at home just as a new wave of legal pluralism was being produced elsewhere through colonization. Before moving to that discussion, it is pertinent to note that, while the focus herein has been on legal pluralism within medieval Europe, the phenomena just described were by no means limited to that context. Wherever there were movements of people, wherever there were empires, wherever religions spanned different language and cultural groups, wherever there was trade between different groups, or different groups lived side by side, it is inevitable that different bodies of law would operate or overlap within the same social field. Since these were common conditions, the kinds of legal pluralism that existed in medieval Europe no doubt existed elsewhere .”, St John’s University LEGAL STUDIES RESEARCH PAPER SERIES , 2008 , UNDERSTANDING LEGAL PLURALISM: PAST TO PRESENT, LOCAL TO GLOBAL
Tariq Modood Multiculturalism: not a minority problem, http://www.guardian.co.uk/commentisfree/2011/feb/07/multiculturalism-not-minority-problem/print “ Notices of the death of multiculturalism began in Britain as far back as 1989, with the Salman Rushdie/Satanic Verses affair . It became clear that the minority-majority faultline was not going to be simply about colour racism, and that the definition of multiculturalism could not be confined to "steelbands, saris and samosas". For some liberals that meant an end to their support for the concept, as angry Muslims muscled in on something that was intended only for the likes of gay people or black youth. Their protests were supported as "right on", but a passionate religious identity was too multicultural for many. And yet, a decade on political multiculturalism flourished as Labour came to accept ethno-religious communitarianism as it had previously accepted other assertive identity movements. The sanctioning of faith schools, religious discrimination legislation, bringing Muslims into the networks of governance – all these happened well after the original "death of multiculturalism". Indeed, some occurred after 9/11 and 7/7 , events that were also meant to have killed it. One of the very last acts of New Labour was the passing of the Equality Act, which for the first time put the claims of the religion and belief strand on the same level as race. Initially, having religious equality legislation because of an EU directive, Labour left office with legislation that went well beyond anything found in Europe (on race as well as a religion) One of the reasons multiculturalism does not die despite having its last rites continually read out by successive government Ministers, like David Blunkett, Ruth Kelly and Hazel Blears, is that there are very few policies at stake. This is clear from David Cameron's speech , which despite its emphatic rhetoric has very little practical content. After all, many worry about residential segregation and inward-looking communities. But population distribution could only be achieved by, to coin a phrase, muscular illiberalism. Residential concentrations result more from fear of racism and "white flight" than self-ghettoisation. Research shows that all minorities – including Muslims – want to live in mixed neighbourhoods, and ghettos are created by those who move out. It is individual or institutional choices, then, that create outcomes – multiculturalist or otherwise. Schools that choose their pupils, like faith schools, are less ethnically mixed than where pupils are allocated places by local authorities. The expansion of faith schools and indeed the "big society" concept in general – in so far as it hands over resources and decision-making to neighbourhoods, communities, charities and organised religion – should see the development, not the decline, of ethno-religious communitarianism. Unlike Cameron I call that "multiculturalism" and I am in favour of it, with certain conditions. One is that it must be within a context of robust individual rights. Society cannot be reduced to individuals, and so integration must be about bringing new communities, and not just new individuals, into relations of equal respect. This means challenging racism and Islamophobia and so on, not by denying that there are groups in society but by developing positive group identities and adapting customs and institutions that enable that. Equally importantly, we must not take for granted what we have in common, but work hard to ensure that all citizens recognise themselves in our shared concept of citizenship – imaginatively shaped by our sense of who we are, where we are coming from and where we are going. An out-of-date national story, for example, alienates new communities, who want to be written into the narrative backwards as well as forward. Multiculturalism is incomplete and one-sided without a continual remaking of national identity. This aspect has been understated, and so the inattentive assume that multiculturalism is all about emphasising difference and separatism. In fact it's about creating a new, ongoing "We" out of all the little, medium-sized and large platoons that make up the country. In Britain we have made some progress. If this does not seem so, it is because of Britain's understated and misstated national identity, which goes back to the contingencies of the union and running an empire. Even today ethnic minorities are more likely than white people to say they are British. It is white reticence, not minority separatism, that is an obstacle to an inclusive national identity; without overcoming this, multicultural nation-building is difficult
the immense difference in the interpretation of what is meant by that separation of powers which Montesquieu did so much to promote is today one of the elements that determine the line between the use and the misuse of the comparative method