Law and Culture
In the more or less recent past, several authors have stressed the role of culture, particularly legal culture, as a distinctive and constituent part of the legal mind. Esin Örücü did so, for example, in her article in this journal on critical comparative law (http://www.ejcl.org/41/abs41-1.html) and Arthur T. von Mehren in his 'The U.S. Legal System: Between Common Law and Civil Law Legal Traditions'.(1) No present-day comparative lawyer will deny that role. Cultures differ, and understanding or perhaps even internalising a different culture is a difficult process, both intellectually and emotionally. Furthermore, it will be clear that, in a community which shares a common culture, all members do not necessarily share the culture of that community's legal subcommunity. Understanding legal culture is the result of legal education and training. For these reasons, a comparative lawyer faces at least two problems before she can start the process of acquiring knowledge of a foreign legal system. Firstly, she does not share the culture of the other ('foreign') community and secondly, she does not share most cultural aspects of that foreign culture's legal subcommunity. I write 'most cultural aspects', as it is a common experience in the comparative law world that somehow lawyers tend to argue in ways which have some common features. To give an example, both common and civil law practitioners, in spite of all the theoretical differences between their respective legal systems, are more inclined to think in terms of problems and solutions than along strong doctrinal lines.
Comparing legal systems which are more closely connected (the laws of neighbouring countries or of a particular legal family) may be easier than comparing legal systems which originate from radically diverging backgrounds (e.g. the comparison of Dutch law with religious law, such as Hindu or Islamic law). Still, vicinity also has its dangers. What may seem to be the same or comparable, may prove to be totally different upon closer examination. On the other hand, what may seem too foreign to compare, may be better to understand than one thought at first.
American and European societies have much in common, both historically and as a result of globalisation. The foundations of American law are English common law and continental-European Roman and civil law. Political, social and economic ideas which were developed in Europe were put to a test in the American Constitution. Still, there are deep-rooted differences. The separation of powers, as laid down in the American constitution, is not perceived by Americans in general and by American lawyers in particular as preventing a purely political debate about the desired background and ideas of a nominee for a judicial appointment, especially the United States Supreme Court. From a European viewpoint, judicial appointments in the United States are not approached with the political restraint which is so characteristic of appointments in European countries. This is what makes it so difficult to understand for European law students and lawyers alike what American lawyers (and citizens) say about the Bush v. Gore cases (to be found at the official United States Supreme Court Web site, http://www.supremecourtus.gov/): that 'the system worked', even when many Americans have the feeling that the election process showed serious problems and that the outcome is debatable. From a European viewpoint, courts and individual judges should avoid becoming politicians. It is not an easy task to explain to European law students that these are not decisions by a Supreme Court which voted along political lines to safeguard the appointment of a presidential candidate with whom they share their political ideas. See, in this respect, the article by Michael J. Klarman, 'Bush v. Gore Through the Lens of Constitutional History', working paper published by the Social Science Research Network Electronic Library (http://papers.ssrn.com/sol3/DisplayAbstractSearch.cfm), in printed form to be published in the 2001 autumn issue of the California Law Review (more information on this journal can be found at http://www.law.berkeley.edu/journals/clr/).
Could it be that American and European cultures, after a period of approaching each other, as a direct result of the cooperation and understanding which evolved during the Second World War, are now facing increasing divergence? In the area of human rights, there is a growing feeling in Europe that American law does not protect these rights to the same extent as this is done in Europe. Reference can be made to the European Convention on Human Rights (ECHR), the case law of the European Court of Human Rights and the draft European Union Charter of Human Rights. For European Union law, see http://www.europa.eu.int/abc/rights_en.htm and http://www.europa.eu.int/comm/justice_home/unit/charte/index_en.html. For the European Convention on Human Rights and the Court of Human Rights, see http://www.echr.coe.int/. The prime example is the death penalty, which is forbidden under European human rights law, but, generally speaking, accepted in American law. An interesting comparative analysis could further be made as to the protection of property under Article 1 Protocol No. 1 ECHR and the constitutional protection of property in the United States, particularly with regard to the degree of protection.
This divergence can also be seen in other areas than law. Protection of a national film industry is, from a European viewpoint, more related to protecting culture than to the world of economics. From an American perspective, it is the opposite. Genetically manipulated food is seen by Europan consumers as a possible health threat (the fear is that no one knows what will be discovered about health effects in a few years' time), whereas from an American perspective it is a commodity that should be traded and sold everywhere.
It is interesting to compare this with the Western European perception of Central and Eastern European, as well as Russian law. No longer than fifteen years ago, a comparison between Western European common and civil law, on the one hand, and 'socialist' laws, notably of the Soviet Union, on the other hand, was seen as extremely difficult. Some comparativists even spoke about intersystemic comparison, meaning that the systems were so totally different that only acquiring knowledge of the other system was possible; any comparison that could be made was a purely ideological analysis. Given the fact that interpersonal contacts between comparative lawyers were infrequent, Western European comparativists focused on their own legal systems and the law of countries outside Europe which were derived from those systems or with which they had historical contacts. This changed radically when Marxism no longer was the prevailing ideology in Eastern Europe and in Russia, and assistance from Western European countries was sought for the transformation process from a planned economy to a market economy. The result was - and still is - very intense direct contacts between lawyers from various countries in Western and Eastern Europe including Russia, resulting in growing understanding of one another's legal systems and ways of thinking. A period of convergence has certainly begun, which for some Central and Eastern European states will eventually result in membership of the European Union. On the enlargement process, see the official Web site of the European Union: http://www.europa.eu.int/comm/enlargement/index.htm.
Understanding a foreign legal system and a foreign (legal) culture is not possible without respecting it. Debates as to the rightfulness and efficiency of a particular legal system are certainly useful: they promote understanding and create awareness of the relative value of legal solutions. These debates, even when they are strictly academic, should not, however, have as a background purpose the promotion of one particular mode of legal thinking over another. Differences between legal systems are the expression of self-identity, as differences between individual people are, and as such are to be respected.
Perhaps Europe is becoming more self-centred, more inclined to look towards its own legal and cultural traditions. It is certainly true that there is a broadening and deepening understanding between the various European legal traditions: continental civil law, Scandinavian law, English and Irish common law and the mixed legal system of Scotland. It is also true that, in part as a result of closer economic and monetary cooperation within the Eurozone, Northern and Southern European countries are developing closer ties. This in itself does not explain, however, why Europe and the United States seem to be on a diverging path. It looks as if Europe is finally restoring itself after the horrors of two world wars and intends to be an equal transatlantic partner for the United States. In an equal relationship, each can learn from the other.
Sjef van Erp,
1. Published by the Centro di studi e ricerche di diritto comparato e straniero in Rome, Saggi, conferenze e seminari 40 (Rome, 2000). The institute's Web site can be found at http://soi.cnr.it/~crdcs/crdcs/. This is a publication in the 'blue book' series; it has, however, not yet been made available electronically through the centre's Web site.