Culture as a heuristic device
Mitchel Lasser
There are at least two broad ways of conceiving of the relationship between comparative law and the study of culture. The first proposition is substantive: there is such a thing as a legal culture, an entity with its own defining characteristics; and the point of comparative legal work should be to arrive at an appropriate understanding of that foreign legal entity. Of course, there are many variants on this proposition, including differences on the possibility of actually arriving at such understanding, ranging from absolute impossibilityto relatively unproblematic access, with everything in between.
The second proposition is methodological: in approaching a foreign legal system, one should not focus on either a) black letter law, formal procedures, and the like or on b) such quantitative scientific information as GNP measurements, efficiency ratings and transaction costs in contracting, etc. One shouldinsteadfocus on cultural factors. This proposition also comes in many variants, of which the two most obvious might be: a) one should look at culture (usually national culture) “outside” of law, such as high and low art, politics and other social practices, and the like; or b) one shouldexamine the culture within – or of – the legal system itself, i.e., its characteristic ways of thinking (mentalités) and acting (path dependent practices).
These two approaches to (comparative) law and culture suggest a third problem, which concerns the relationship between the two propositions. Can one only get at culture (in the sense of the first proposition) by means of the construction and deployment of a cultural methodology (in the sense of the second proposition)?
On the merits, I confess certain misgivings about the first proposition, as it seems to imply (although it need not imply) excessive integrity/unity, stability/immutability and autonomy/impermeability in the object of study. It also raises a host of endlessly thorny issues (heavily studied by physicists and anthropologists) regarding the relation between the subject and object of analysis.
I also have grave misgivings with regards to the second proposition, insofar as it seems to imagine separating out the material from the ideological and then privileging one over the other, or insofar as it suggests that the material is not itself cultural, or that the cultural/symbolic is not material, or that approaching the foreign object in a “culturally sensitive” manner is inherently different – and less distorting – than doing so in a more quantitative or empirical manner.
And yet, for all of these misgivings, and for all that I do not wish to get embroiled in the longstanding and highly sophisticated debates over the protean term,the idea of culture is important to my thinking and I do not want to give it up. Not that I use the term much at all in my writing. Indeed, I hardly ever use it at all. If I am uncomfortable with the traditional uses, connotations and implicationsof the term in the comparative legal literature, and if I rarely use it in my writing, what use can it be to me in my work?
The usefulness of the idea of culture is, for me, above all heuristic. It is an evocative concept that chides and provokes me, prompting me to pay attention to certain kinds of issues and to be open to a broad range of materials; and the very protean quality of the term induces me totry to be simultaneously conscious and respectful (if, at times, skeptical) of a whole range of different actors, institutions, practices, discursive systems, symbolic orders, professional and social interactions, self-conceptions, identity commitments, histories, and the like, all at the same time. Let me link this to my comparative work on the French legal and judicial system, especially insofar as this panel was intended precisely to force us to stay grounded in our specific projects.
Culture as an evocatively protean heuristic for my analysis of the French legal and judicial system: a few vague examples among many
● Culture as an analytic injunction:suggests a duty to exercise a certain degree of care and respect:
Treat the French system in a non-reductionist manner. Assume non-stupidity of actors, practices and conceptual constructs of the foreign system, even if the logics of that system are not immediately apparent. This does not necessarily imply adopting either radical relativism/ skepticism or quantitative rakings; but it does represent an injunction to approach the foreign object of study with a certain measure of respect, to take as one’s working assumption that the examined system possesses a certain richness, depth, complexity, creativity, and potential for intelligent action (for whatever purposes).
● Culture as complex yet in some way holistic: An extremely wide array of French institutions (judicial, political, academic, educational, etc.), symbols, mentalités, procedures, discourses, professions, myths, and the like need to be brought into the analytic picture at once. The resulting complexity can be at the same time organized/ coherent and disorganized/ fractured.
● Culture as contested: Although French legal culture may at first appear as if it were a unitary entity, it is in fact composed of multiple sub-components or subcultures (some more valued and influential than others). The culture therefore contains a series of internal fractures, which have provoked various types of conflicts: for example, conflicts between assorted institutions (e.g., judges vs. academic doctrinal writers), between sub-institutions (e.g., judicial (or quasi-judicial) struggles between the Cour de Cassation, the Conseil d’Etat and the Conseil Constitutionnel), between groups within those (e.g., struggles between the “sitting” judges and the Parquet’s Advocates General), between camps within those (e.g., pro- vs. anti- Europe).
● Culture as simultaneously stable and evolving: The French system undoubtedly possesses a great deal in the way of historical longuedurée: enduring values, institutions, myths and symbols. In addition to (and arguably in tension with) the endlessly discussed French glorification of the legislature and distrust of judges, one must recognize the continuity of the monarchical, Napoleonic, Republican and Gaullist centralization and empowerment of elite managers and leading state institutions. Yet these traditions are constantly being rewritten, borders being challenged, meanings being reformulated, etc. One need only think of the current scrambleto translate classic French republican concepts and traditions into contemporary fundamental rights terms (and vice versa).
● Culture as simultaneously durable and delicate: The French legal system zealously polices its internal and external borders. There is, for example, a longstanding tradition of French judicial resistance to intrusive ECJ (and now ECHR) doctrines. Yet the French system is nonethelesssubject to significant external pressures, such as the ECHR’s current Article 6-1 “fair trial” jurisprudence, which can trigger a series of ongoing and interconnected internal shifts, only some of which are intended, but all of which can (and constantly do) increasingly upset the procedural, institutional and conceptual balances that define the system. At the same time as the French system protects itself from these pressures, it also solicits and leverages them for its own purposes. There is no dearth of internal players of limited status for whom disruption represents opportunity.
● Culture as both self-reflective and yet blind to itself: There is no shortage of reflective thinkers within the system. Some are apologists; some are critics. Some are highly placed judges; some are better or less well known jurists; some are disenfranchised litigants. But they all engage in meaningful self-reflection with regards to the French legal and judicial system. In fact, the particular modes of self-reflection (e.g., academic/ doctrinal) are themselves an integralpart of the culture. At the same time, the very embeddedness of the people in the institutions and practices (both material and intellectual) of the culture leads to a certain kind of blindness, a certain inability to shake certain presuppositions about the local environment which can be perceived from the outside. Assumptions, for example, about expertise, management, craft, knowledge production and circulation, and the like, are rarely made explicit and thus opened to explicit challenge.
● Culture as omnipresent and inescapable: The US comparative law tradition can easily be described as a culture (or sub-culture) of its own, whose observation of French legal culture has hardly been innocuous. Steeped in the American legal realist tradition, it has offered (often highly unflattering) comparative analyses that have impacted meaningfully upon French legal culture. Even today, American comparative analyses, such as the “Doing Business Reports,” generate deeply meaningful reactions and cause significant feedback loops.
● Culture as exclusionary yet permeable: Opaque French institutional decision-making and its internal equity discourse can be seen as solicitous of, inclusive for, and responsive to only those already taken to belong within the ambit of the unitary Frenchcitizenry. The French republican ethos thus reflects and reproduces representation problems with regards to assorted internal and external minorities. The opacity of the French judicial system therefore functions as a barrier to entry, influence and belonging. The barrier has however been increasingly breached and reconstructed by both internal and external forces.
● Cultural conflict: The current contests at the intersection of French and European law reflect a tension-ladenmeeting of procedural, institutional and conceptual structures in which the self-conception of French law is being overtly renegotiated in response to perceived threats and/or opportunities from the outside. This process of Franco-European negotiation includes a heavy dose of identity construction, in which assorted French actors explicitly deploy notions of French or Civilian legal culture as a means to buttress their arguments with regard to proper Franco-European relations. They deploy powerful cultural symbols in support of their desired reformulations of French, European, and Franco-European legality.
As this short sketch suggests, the very difficulties implied in the term “culture,” far from striking me as raising major analytic problems or causes for concern, prove to be of real use to me as a source of richly evocative, complexly interacting and at times seemingly contradictory notions.
That does not mean that the term itself is important to me as an explanatory device or as a definitional category (as the extremely limited use of the term in my published work suggests) or that I have much interest in theorizing the term and its seemingly endless difficulties and contradictions; but its protean quality actually helps me to think through a wide range of issues. In that respect, it functions for me as a quite valuable and evocative heuristic device.
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