Three Approaches to Law and Culture

TLDR: In this article, three major approaches connecting culture to law are discussed: the historical school that arose in German jurisprudence in the first half of the nineteenth century, the constitutive approach that developed in American law in the 1980s, and the third approach, found in twenty-first-century Anglo-American legal scholarship, views the law that the courts create and apply as a distinct cultural system.

Abstract: This article discusses three major approaches connecting culture to law. The first is the historical school that arose in German jurisprudence in the first half of the nineteenth century. It views law as a product of a nation’s culture and as embedded in the daily practices of its people. The second approach is the constitutive approach that developed in American jurisprudence in the 1980s. This approach views law as participating in the constitution of culture and thereby in the constitution of people’s minds, practices, and social relations. The third approach, found in twentieth-century Anglo-American jurisprudence, views the law that the courts create and apply as a distinct cultural system. Law practitioners internalize this culture in the course of their studies and professional activity, and this internalization comes to constitute, direct, and delimit the way these practitioners think, argue, resolve cases, and provide justifications. The writings of Karl Llewellyn, James Boyd White, Pierre Bourdieu and Stanley Fish are discussed. Beyond these three approaches the article points out nine additional approaches in legal scholarship concerning the relationship between law and culture. This mapping is tentative. It is hoped, however, that it gives readers a preliminary idea of the widespread use of the concept of culture in the law and that it invites further reflection on other possible ways to employ the concept of culture in legal scholarship for a richer understanding of the legal phenomenon.