Author
David Nelken
Other affiliations: London School of Economics and Political Science, Cardiff University, University of Edinburgh ...read more
Bio: David Nelken is an academic researcher from King's College London. The author has contributed to research in topics: Comparative law & Legal culture. The author has an hindex of 26, co-authored 115 publications receiving 2278 citations. Previous affiliations of David Nelken include London School of Economics and Political Science & Cardiff University.
Papers published on a yearly basis
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01 May 2004
TL;DR: Nelken as mentioned in this paper used the concept of legal culture to describe relatively stable patterns of legally oriented social behaviour and attitudes, such as institutions such as the number and role of lawyers or the ways judges are appointed and controlled, to various forms of behaviour such as litigation or prison rates, and, at the other extreme, more nebulous aspects of ideas, values, aspirations and mentalities.
Abstract: Forthcoming in the Australian Journal of Legal Philosophy 2004 USING THE CONCEPT OF LEGAL CULTURE David Nelken * 1.The Meaning of Legal Culture Legal culture, in its most general sense, is one way of describing relatively stable patterns of legally oriented social behaviour and attitudes. The identifying elements of legal culture range from facts about institutions such as the number and role of lawyers or the ways judges are appointed and controlled, to various forms of behaviour such as litigation or prison rates, and, at the other extreme, more nebulous aspects of ideas, values, aspirations and mentalities. Like culture itself, legal culture is about who we are not just what we do. Enquiries into legal culture try to understand puzzling features of the role and the rule of law within given societies. Why do the UK and Denmark complain most about the imposition of EU law but then turn out to be the countries which have the best records of obedience? Conversely, why does Italy, whose public opinion is most in favour of Europe, have such a high rate of non compliance? Why does Holland, otherwise so similar, have such a low litigation rate compared to neighbouring Germany? Why in the United States and the UK does it often takes a sex scandal to create official interest in doing something about corruption, whereas in Latin countries it takes a major corruption scandal to excite interest in marital unfaithfulness!? Such contrasts can lead us to reconsider broader theoretical issues in the study of law and society. How does the importance of 'enforcement' as an aspect of law vary in different societies? What can be learned, and what is likely to be obscured, by defining 'law' in terms of litigation rates? How do shame and guilt cultures condition the boundaries of law and in what ways does law help shape those self -same boundaries? These few examples are enough to suggest that findings about legal culture can have both theoretical and policy implications. But there may even be more straightforwardly practical Distinguished Professor of Legal Institutions and Social Change, University of Macerata, Italy; Distinguished Research Professor of Law, Unversity of Wales Cardiff; and Visiting Professor of Law, LSE. This is a revised version of a paper that was presented as a keynote address to the Australian Association of Legal and Social Philosophy conference (July 18-20 2003). I should like to thank Professor Peter Crane and Professor Tom Campbell for their kind invitation, Professor Dimity Kingsford -Smith for graciously suggesting the idea, and Professor Jeremy Webber for his ‘reply’ to the paper.
192 citations
TL;DR: In this article, the authors make the case that more attention needs to be given to understanding how different criminal justice systems actually produce prison rates as well as to interpreting the ideas and values that animate those inside and outside the system.
Abstract: How can the study of comparative criminal justice avoid the opposite dangers of ethnocentrism and relativism? The problem is examined taking as an example Cavadino and Dignan's recent analysis of differences in prison rates. The case is made that more attention needs to be given to understanding how different criminal justice systems actually produce prison rates as well as to interpreting the ideas and values that animate those inside and outside the system.
185 citations
Book•
22 Apr 2010
TL;DR: The Challenge of the Global Whose Sense: Why Compare? Why compare? Just Comparison Ways of Making Sense Explaining too Much? The challenge of the global whose sense as discussed by the authors.
Abstract: Changing Paradigms Why Compare? Just Comparison Ways of Making Sense Explaining too Much? The Challenge of the Global Whose Sense?
111 citations
Book•
01 Nov 2001
TL;DR: In this article, the authors focus on legal adaptation towards a sociology of legal adaptation, focusing on legal transplantation in South-east Asia, where legal adaptation has been studied in the context of public service and universal service.
Abstract: Part 1 Theorizing legal adaptation: towards a sociology of legal adaptation, David Nelken what "legal transplants"?, Pierre Legrand is there a logic of legal transplants?, Roger Cotterrell some comments on Cotterrell and legal transplants, Lawrence Friedman state formation and legal change - on the impact of international politics, Alex Jettinghoff from globalization of law to law under globalization, Wolf Heydebrand. Part 2 Case studies of legal adaptation: the still-birth and re-birth or product liability in Japan, Luke Nottage the empty space of the modern in Japanese law discourse, Takao Tanase comparative law and legal transplantation in South East Asia, Andrew Harding marketization, public service and universal service, Tony Prosser the import and export of law and legal institutions - international strategies in national palace wars, Yves Dezalay and Bryant Garth the vultures fly east - the creation and globalization of the distressed debt market, John Flood.
109 citations
01 Jan 1997
TL;DR: In this article, the authors cross-examine mainstream approaches to studying legal culture (e.g., those of Friedman and Blankenburg), including debates over the concept of legal culture and a variety of case studies of different legal cultures.
Abstract: This volume cross-examines mainstream approaches to studying legal culture (e.g. those of Friedman and Blankenburg). It includes debates over the concept of legal culture and a variety of case studies of different legal cultures.
102 citations
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TL;DR: GARLAND, 2001, p. 2, the authors argues that a modernidade tardia, esse distintivo padrão de relações sociais, econômicas e culturais, trouxe consigo um conjunto de riscos, inseguranças, and problemas de controle social that deram uma configuração específica às nossas respostas ao crime, ao garantir os altos custos das
Abstract: Nos últimos trinta trinta anos, houve profundas mudanças na forma como compreendemos o crime e a justiça criminal. O crime tornou-se um evento simbólico, um verdadeiro teste para a ordem social e para as políticas governamentais, um desafio para a sociedade civil, para a democracia e para os direitos humanos. Segundo David Garland, professor da Faculdade de Direito da New York University, um dos principais autores no campo da Sociologia da Punição e com artigo publicado na Revista de Sociologia e Política , número 13, na modernidade tardia houve uma verdadeira obsessão securitária, direcionando as políticas criminais para um maior rigor em relação às penas e maior intolerância com o criminoso. Há trinta anos, nos EUA e na Inglaterra essa tendência era insuspeita. O livro mostra que os dois países compartilham intrigantes similaridades em suas práticas criminais, a despeito da divisão racial, das desigualdades econômicas e da letalidade violenta que marcam fortemente o cenário americano. Segundo David Garland, encontram-se nos dois países os “mesmos tipos de riscos e inseguranças, a mesma percepção a respeito dos problemas de um controle social não-efetivo, as mesmas críticas da justiça criminal tradicional, e as mesmas ansiedades recorrentes sobre mudança e ordem sociais”1 (GARLAND, 2001, p. 2). O argumento principal da obra é o seguinte: a modernidade tardia, esse distintivo padrão de relações sociais, econômicas e culturais, trouxe consigo um conjunto de riscos, inseguranças e problemas de controle social que deram uma configuração específica às nossas respostas ao crime, ao garantir os altos custos das políticas criminais, o grau máximo de duração das penas e a excessivas taxas de encarceramento.
2,183 citations
TL;DR: In this paper, a judge in some representative American jurisdiction is assumed to accept the main uncontroversial constitutive and regulative rules of the law in his jurisdiction and to follow earlier decisions of their court or higher courts whose rationale, as l
Abstract: 1.. HARD CASES 5. Legal Rights A. Legislation . . . We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principles require. We shall find that he would construct these theories in the same manner as a philosophical referee would construct the character of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules. I suppose that Hercules is a judge in some representative American jurisdiction. I assume that he accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction. He accepts, that is, that statutes have the general power to create and extinguish legal rights, and that judges have the general duty to follow earlier decisions of their court or higher courts whose rationale, as l
2,050 citations
TL;DR: In this paper, the authors argue that an important new language of penology is emerging, which shifts focus away from the traditional concerns of the criminal law and criminology, which have focused on the individual, and redirects it to actuarial consideration of aggregates.
Abstract: The new penology argues that an important new language of penology is emerging. This new language, which has its counterparts in other areas of the law as well, shifts focus away from the traditional concerns of the criminal law and criminology, which have focused on the individual, and redirects it to actuarial consideration of aggregates. This shift has a number of important implications: It facilitates development of a vision or model of a new type of criminal process that embraces increased reliance on imprisonment and that merges concerns for surveillance and custody, that shifts away from a concern with punishing individuals to managing aggregates of dangerous groups, and that affects the training and practice of criminologists.
1,938 citations
TL;DR: A descriptive analysis of strategies of crime control in contemporary Britain and elsewhere can be found in this paper, where the authors argue that the normality of high crime rates and the limitations of criminal justice agencies have created a new predicament for governments.
Abstract: The article offers a descriptive analysis of strategies of crime control in contemporary Britain and elsewhere. It argues that the normality of high crime rates and the limitations of criminal justice agencies have created a new predicament for governments. The response to this predicament has been recurring ambivalence that helps explain the volatile and contradictory character of recent crime control policy. The article identifies adaptive strategies (responsibilization, defining deviance down, and redefining organizational success) and strategies of denial (the punitive sovereign response), as well as the different criminologies that accompany them.
1,575 citations