LAW AS CULTURE: CULTURE ABOUT LAW

Transcription

1 LAW AS CULTURE: CULTURE ABOUT LAW dr. Josip Berdica, Assistant Professor Toni Pranić, mag. soc., assistant «Lex debet esse possibilis et secundum naturam, et secundum consuetudinem patriae». (Thomas Aquinas, Summa Theologiae, Ia Iiae q. 96, art. 2) Keywords: legal culture, internal legal culture, change in law, stereotypes. I. «All collective human life», says Luhmann in his important book A Sociological Theory of Law, «is directly or indirectly shaped by law». «Law is», he continues, «an essential and allpervasive fact of the social condition». 1 We can freely say our everyday life is hardly to understand without some aspects of law or facts connected with law. But, as we all know, law is multifaceded phenomenon that presents innumerable topics for research, and our meeting here deals with just a small slice of this phenomenon. In brief, with this paper we are concerned with the very alive discussion inside legal and sociological theory about understanding of culture and its relations (maybe it's better to say «communication» via symbols) with law. We are interested in (1) understanding the law not only as product of culture but also as a source of entirely unique culture («legal culture»), and (2) how culture itself understands and affects the law («culture about law»). We also in brief consider the interconnections between law and culture by assessing the actions of culture as constituent of law. This oral paper merely suggests a few we hope useful propositions about some lines of discussion on important connection of two social phenomenon - law and culture. It is more important for us here in Croatia because no one has seriously addressed this issue in recent discussions. This oral reflections are (we hope so) only framework for later article. First, one question for all of us. What can law and sociology each contribute to the development of knowledge about institution of law? This is something very important for our students who often don't understand what is the role of sociology on faculty of law. This is also important for our discussion about current problems of legal theory and practise as well. «The law ought to be possible and according to nature, and the custom of the country». 1 Luhmann, N., A Sociological Theory of Law, Routledge & Kegan Paul, London, 1985.,p. 1. 1

2 As Larry Barnett says, «a scholar who has been trained in law benefits from the ability to uncover and delve into the flexibility of the concepts and doctrines of law». On the other hand, «a lawyer who has not had graduate-level training in empirical sociology is at a material disadvantage in ascertaining the reasons for changes in law, because a lawyer whose schooling has been solely in law is unlikely to be familiar with the concepts, data, and quantitative methods of sociology resources that can help explain why law undergoes alteration». 2 In words of Zygmunt Baumann, in our society everything is fluid. The law is no exception. Social scientists, approaching the legal system, begin with a master hypothesis: that social change will lead to legal change. If one asks, how social change leads to legal change, the first answer is: by means of legal culture. «That is», Friedman explains, «social change leads to changes in people's values and attitudes, and this sets up chains of demands (or withdrawals), which in turn push law and government in some particular direction». 3 In one of his last essay 4 Kant asked: «Is humanity in perpetual movement toward better?» On this question, which according to him is in the field of the prophetic conception of history, his answer seems to be affirmative, despite some hesitation. We can also ask the same question about law and legal institutions. «Legal institutions», says Friedman, «are reflections of social institutions, and they have been thoroughly revised and revamped and remolded over the years». 5 So, for asking such type of a question we must first of all keep in mind that the law and its benefits are not only part of the culture but also the special form of culture itself. «In reality», says Umberto Eco, «all cultural phenomena (and law is one form of cultural phenomenon) are systems of signs, or communication phenomena». 6 Law and its benefits are a system of communication phenomena sui generis. So, the phrase «legal culture» is used here to identify the understandings and meanings of law that circulate in social relations. If a student after studying on our faculty does not understand this, it means that we missed our profession. Connection between culture and law has long been postulated. For example in Esprit des Lois (1748.) Montesquieu postulated the necessity for positive law to be adapted to the 2 Barnett, L. D., The Place of Law: The Role and Limits of Law in Society, Transaction Publishers, New Brunswick London, 2011., p. X. 3 Macaulay, S., Friedman, L. M., Mertz, E., Law in Action: A Socio-legal Reader, Foundation Press, New York, 2007., p It is the essay «Über den Gemeinspruch: Das mag in der Theorie richtig sein, taugt aber nicht für die Praxis» Macaulay, Friedman, Mertz op. cit. note 3., p Eco, U., Kultura Informacija Komunikacija, Nolit, Beograd, 1973., p

3 geographical features of the country and the cultural characteristics of its people. Something similar earlier said Thomas Aquinas in his Summa theologiae: «Lex debet esse possibilis et secundum naturam, et secundum consuetudinem patriae». But despite its rich history, law and culture have finally came together in the 19th century with Savigny (law as a «cultural achievement» or «as one of the most important expressions of the spirit of a people») and Max Weber with his comparative cultural sociology of law and with the idea of rationality as culture, a core criterion for western law that still finds wide acceptance today. 7 In one word, culture concept may well be one of those ideas that social scientists «can't live with, but can't live without». In a century of the birth of theory of culture (anthropology and sociology), law has found a new framework (or maybe better new spectacles) for self-understanding. Earlier philosophy and theology, and now sociology and anthropology. Battle (of theories) could begin. II. The term «legal culture» stands between law and culture, with obviously unclear borders in both directions. «Legal culture» represents that cultural background of law which creates the law and which is necessary to give meaning to law. This encompasses, as Ralf Michaels notes, «the role of law in society, the role of different legal sources, the actual authority of different actors and institutions», and much more. The fact of this relationship does not mean «that law is tradition-driven», but it simply means that law is part of a package of «durable customs, ideas, values, habits, and practices». This definition incorporates both ideas and (social) practices. Clifford Geertz in his Storrs Lectures given in focused on the particular shape of cultural understandings in each society. Different cultures will have divergent, characteristic ideas about law or rules or justice and this will affect the way legal problems are resolved. Geertz stressed that «the world is a various place, various between lawyers and anthropologists, various between Muslims and Hindus,... and much is to be gained, scientifically and otherwise, by confronting that grand actuality rather than wishing it away in a haze of forceless generalities and false comforts». 9 7 See this in: Michaels, R., «Legal Culture», in: Oxford Handbook of European Private Law, Basedow, J., Hopt, K. J., Zimmermann R. and Stier A. (eds.), Oxford University Press, Oxford We can mention here and American judge and jurist Oliver Wendell Holmes who expressed a conviction that the law was a great anthropological document. 8 See: Geertz, C., Lokalno znanje: Eseji iz interpretativne antropologije, AGM, Zagreb, For this discussion see: Macaulay, Friedman, Mertz, op. cit. note 3., p

4 Discussions about culture are countless. And especially today when everything is culture («eculture», «culture of death», «culture of rights», «culture-of-being-everything-you-want», etc.). But here we can use one small definition of this problematic term. «Culture is every human intervention on some natural phenomenon, modified to the extent that it can be incorporated into a social relation». 10 Cicero in his Tusculanae disputationes see culture as work of human intellect with one primary task human transformation. [For example, on the first page of Primitive Culture famous English anthropologist Edward Tylor provides a definition which is one of his most widely recognised contributions to anthropology. He says: «Culture... is that complex whole which includes knowledge, belief, art, morals, law, custom, and any other capabilities and habits acquired by man as a member of society». And, we can add, that very same society that is constantly changing. Thus, culture and everything what depends on it or arises from it is in constant moving. We are living in liquid times with liquid culture]. The prefix «legal» characterizes an aspect of the general culture that is associated with law, legal institutions, legal actors and behaviors. But, nearly all such elements can also be described as part of law (as long as law is not limited to legal rules only). The term «legal culture» is often viewed as the part of the culture which concerns itself with law. But, as we all know, law is relevant in nearly all areas of life, so it is very difficult to draw a sharp division between «legal culture» and culture in general. So, more useful for our discussion can be the division between internal and external «legal culture» introduced by Lawrence M. Friedman. Writing in 1975, Friedman introduced the concept of «legal culture» as a means of emphasizing the fact that law was best understood and described as a system, a product of social forces, and itself a conduit of those same forces. We can law understand as «a rule adressed to rational beings by someone with legitimate authority to regulate their conduct», but Friedman adopted the model of a system a set of structures that processes inputs (demands and resources) from an environment to which it sends its outputs (functions). 11 Friedman chose the phrase «legal culture» to name the «social forces... constantly at work on the law», «those parts of general culture customs, opinions, ways of doing and thinking that bend social forces toward or away from the law». 12 «Legal culture» we can understand as (1) analytic term (it emphasized the role of taken for granted and 10 Eco, op. cit. note 6., p For this discussion see: Silbey, S., «Legal Culture and Legal Consciousness», International Encyclopedia of Social and Behavioral Sciences, Pergamon Press, New York, 2001, p Friedman, L. M., The Legal System: A Social Science Perspective, Russell Sage Foundation, New York, 1975, p

5 familiar actions that operated on and within the interactions of the legal system and its environment) or as a (2) descriptive term (it identified a number of related phenomena: public knowledge of and attitudes toward the legal system, as well as patterns of behaviour with respect to the legal system). 13 III. As an example of variations within «legal cultures», Friedman distinguished the internal «legal culture» (of professionals working in the system) from external «legal culture» (of citizens interacting with the system). Our topic theme is one way to connect this different aproaches to the «legal culture». We can also speak about the legal culture of taxi drivers, or rich people (Marx would have a lot to say on this topic), or businessmen, or black people. After all, no two men or women have exactly the same attitudes toward law. Although with various topics it is hard to understand one without another. It is very hard to understand the internal legal culture without «legal conciousness» about external legal culture. It is also very hard to understand the «law efficiency» if we don't understand who makes the law. If we use Karl Jaspers to discover what is more important external or internal «legal culture» we can agree with him when he says: «Der Mensch ist Geist, die Situation des eigentlichen Menschen [ist] seine geistege Situation». So, what is fundamentally is how our society and its members experiences the law and his efficiency!? Secondly, but no less important, is the «legal culture» as the ideas, values, expectations, and attitudes toward law and legal institutions something that would be, in principle, measurable? Finally, can we measure the effects of legal actions? If we take legal action as teleological in its essence (it is aimed at producing effects within a broad sphere of social relations), is legal efficiency something that we can measure? We all know the difference between «law in the books» and «law in action», but we also know that in basic human activities (and law is such activity) law can't be replaced in all by machine» The law is «Menschliches, Allzumenschliches». Maybe now we can understand Friedman's words: «The legal system is a ship that sails the seas of social force». 15 But we can't understand this ship and his route if we exclude skipper. Especially if we include here a key concept of the 19th century 13 For this discussion see: Silbey, loc. cit. note 11., p Jean Fourastié in his «Histoire de Demain» Macaulay, Friedman, Mertz, loc. cit. note 3., p

6 progress. Technological and social changes in society lie behind rising demands. We demand norms from the state, from the collectivity, to guarantee the rights which we cannot guarantee by ourselves. Out of this cycle of demands, the modern state builds up a body of health and safety law. Corresponding to the dramatic changes in society, and in social arrangements, there have been major changes too, in legal culture, in attitudes and expectations of the public with regard to law. «The very fact of change constant, ceaseless change is of prime importance in the legal culture». No field of law has remained static over the last half century. 16 Modern individualism is a key driver of modern social change. So we can aks: can the individual wishes be a source of modern law? Legal culture, as we suggested in this paper, in its most general sense, «is one way of describing relatively stable patterns of legally oriented social behaviour and attitudes». «By legal culture, we mean the ideas, attitudes, values, and beliefs that people hold about the legal system». 17 Friedman identified three central components of legal system: (1) the social (cultural) and legal forces that press in and make «the law», (2) «the law» itself structures and rules, and (3) the impact of law on behaviour in the outside world. «Where the law comes from and what it accomplishes the first and third terms are essentially the social study of law» says Friedman 18. According to this definition and terms we can identify some specific elements of external «legal culture» in Croatia which will be addressed in second part of our paper: the perceptions on judiciary and corruption, efficacy of legal norms, attitudes toward legal system, existence of stereotypes on legal system and within legal system and finally relationship between legal science and legal practise (the President of Croatian Supreme Court says that law can be understood only as connection of theory and practise). 19 There are many topics that we should mention here but we have to adjust to the framework of the given topic. «Law may not be a brooding omnipresence in the sky», as Clifford Geertz notes in his Local knowledge, «but it is not... a collection of ingenious devices to avoid disputes, advance interests, and adjust trouble-cases either. An Anschauung in the 16 See: Macaulay, Friedman, Mertz, op. cit.note 3., p. 260, For this definitions see: Nelken, D., «Using The Concept of Legal Culture», Australian Journal of Legal Philosophy, Vol. 29, No. 1, 2004.,p 1-27,p 1.; Macaulay, Friedman, Mertz, op. cit. ref. 3., p Friedman, op. cit. note 12., p See: Hrvatin, B., Reforma pravnog obrazovanja, (URL: 6

7 marketplace would be more like it». 20 We just must understand this marketplace that we call society. «Legal culture» is about who we are not just what we do (with the law). IV. In this part we will try to point out some findings on Croatian legal system within the previously elaborated concepts. Though there have not been systematic investigations in the field of sociology of law in Croatia there have been studies that concern it and more or less directly depict some aspects of legal culture in Croatia. One study that illustrates how culture affects the law is Ivana Radačić s Sexual violence: Myths, stereotypes and legal system, based on data from analysis of four County Courts and Municipal Courts rulings in matters of sexual violence (Zagreb, Split, Rijeka and Osijek). The author aims to critically analyse legislative frame and judicial practice and to identify gender stereotypes and myths about raping. 21 This statement is significant in cultural sense, because it counterpoints previously mentioned position of Luhmann. It presupposes that though the collective social life is regulated by law, the law is also a subject to social stereotypes. Or to put it plainly, the law is also regulated by social laws. We should add one more distinction to this. As Friedman recognises two different types, internal and external culture, it should be noted that the two specific ones are under the influence of general culture. Therefore, though the external legal culture can be described as more driven with stereotypes, in some extent this could also be true for internal culture. While there is a significant difference between the two, the persistence of stereotypes in internal legal culture is evident. This is the key point Radačić is trying to explore. The internal culture comprises of professionals and they should be guided by legal norms, especially when giving verdict. The most important part of study is not the influence of supposed stereotypes on ruling (because it would take separate legal analysis), but the existence of such explanations - their avowal. Though there are some methodological weaknesses which then spill into interpretative part 22, the existence of such cases is a fact. The mentioned example from a study can be characterized as negative influence, since it interferes with principle of 20 Geertz, op. cit. note 8., p Radačić, I., Seksualno nasilje: mitovi, sterotipi i pravni sustav, TIM press, Zagreb, 2013, p Used concepts are briefly elaborated and somewhat unexplained in analysis and evaluation of verdicts. 7

8 equity. After this discussion there is one question that remains. Can internal legal culture in some aspect be explained as external? It seems that the answer is positive, and that there indeed are some cases when individuals - professionals take this ambivalent position guided different sets of norms. Moreover, the change in law can be particularly well placed in this frame of cultural influence. The connection between the legal norms and change, in regard to laws that regulate sexual behaviour, was elaborated by Nikola Visković. In his witty and insightful essay Sexuality and Law 23, he pointed to historical change and influences in laws that regulate sexuality. Comparison between the different sexual orientations and acts, illustrates the connection of three systems of regulation: moral, religion and law. 24 Recently passed Same sex partnership act 25 is a very good example that illustrates changes in law and society. It s seems that the law changes slowly as well as moral, while religion is more robust. Another interesting case of cultural change represents the change of Criminal Code in regard to marriage rape. Before the Criminal Code Act of 1997 the case of rape in marriage was not recognised. 26 In fact, the act of rape was considered as an act against dignity of person and morality. It is simple to imagine the possibility of some future research on change in law as indicator of social change, as Durkheim did it over a hundred years ago. 27 The latter elaboration points to junction of law as a source of legal culture and the cultural understanding and effect on law. There is evident connection between culture, law and legal culture. Stereotypes are quite good indicators of those connections. The second part of the problem we are interested is concerned with understanding of law. Most popular case of this sort would be research on the perception of corruption. 28 We could easily argue that the corruption represents the natural environment of judiciary in Croatia, at least that is what the public opinion shows. In 2013 a survey measured perception of corruption in judiciary was Visković, N., «Spolnost i pravo 1971.», Zbornik radova Pravnog fakulteta u Splitu, Vol 45, No. 3., 2008, p See: Pusić,E., Društvena regulacija, Globus, Zagreb, 1989, p Same sex partnership act, Narodne novine No. 92/ See: Old Criminal Code of Republic of Croatia, Section 10, Article 83, Narodne novine No. 25/1977, 50/1978, 25/1984, 52/1987, 43/1989, 8/1990, 54/1990, 9/1991, 67/1991, 71/1991, 25/1992, 33/1992, 39/1992, 77/1992, 91/1992, 37/1994, 28/1996, 30/1996). 27 See: Durkheim, E., The Divison of Labour in Society, Free press, New York, See: Malenica, Z., Jeknić, R., «Percepcija korupcije i borba protiv korupcije u Republici Hrvatskoj», Zbornik radova Pravnog fakulteta u Splitu, Vol. 47, No. 4., 2010., p

9 %, second to political parties with 72 % but less than 5% of respondents report having paid the bribe 29. This is related to significant lack of confidence in judiciary (65.4%). 30 In this context, the results from Ajduković et.al. (2012) study on attitudes on criminal law system are not surprising. The study was conducted on students from three different faculties: law, social work and psychology. Results showed that while the students of psychology had the least positive attitude towards criminal law, basically all groups exhibited negative attitudes 31. The analysis of law students responses shows significant level of doubt in aspect of punishment and fairness of law. 57 % of students consider punishments as generally inefficient while 62% consider laws as imprecise and suitable for different interpretations. 32 When comparing different aspects of criminal law system the students are most critical toward police and laws. Attitudes toward state attorneys and judges are more favourable but still mildly negative. 33 This phenomenon of negative attitudes of future professionals toward legal system authors try to explain with the influence of media on forming of opinion. Their argument is based on increased confidence in media in recent decade, and pervasiveness of coverage of negative news. 34 While there could be identified some other variables, this argument can hold. It also illustrates one interesting phenomenon when speaking of internal and external legal culture. It shows the creation of internal legal culture under the influence of external. In this sense, appeal from authors for improvement in media education is necessary. 35 Another question is what is the future of law in media? If future lawyers cannot fully separate objective from subjective, what can ordinary lay people think about law? Conclusion In this brief discussion we tried to explain some basic concepts for better understanding the law as a social phenomenon. As we argued, this is best done with the concept of legal culture. Our understanding of relations between culture and law was basedon elaboration of some concepts of culture, and also legal culture. The key concept we considered was the 29 Transparency International, Global Corruption Barometer, (url: 30 Malenica, Jeknić, op. cit. note 28., p Ajduković, M., Herceg, B., Radić, I., Novokmet, A., Vukušić, I., «Stavovi studenata prava prema kaznenom pravnom sustavu», Zbornik Pravnog fakulteta u Zagrebu, Vol. 62, No. 3, 2012, p , p Ibid., p Ibid., p Ibid., p Ibid., p

10 Friedman s term «legal culture» and his division of «internal culture» and «external culture». In second part we have tried to apply them on few studies of legal system in Croatia. From there we proposed some additional viewpoints that, hopefully, help in providing new insight. We suggested that there is certain overlap between the two, and that in some cases members of internal culture - legal professionals, can be guided by some norms and beliefs of external legal culture. While this is present in matters of legal interpretation, it is even more evident in the case of attitudes toward specific parts of law system, as the study of attitudes shows. Our aim was to put some examples in theoretical frame and to explore some options for future research. Mentioned cases represent the three components of legal system 36 and show their connections and mutual dependence. They are nets that connect diverse parts of law and society that make our legal culture, or to paraphrase a long deceased sociologist, the legal us. Bibliography: Ajduković, M., Herceg, B., Radić, I., Novokmet, A., Vukušić, I., «Stavovi studenata prava prema kaznenom pravnom sustavu», Zbornik Pravnog fakulteta u Zagrebu, Vol. 62, No. 3, 2012., p Barnett, L. D., The Place of Law: The Role and Limits of Law in Society, Transaction Publishers, New Brunswick London, Darian-Smith, E., Laws and Societies in Global Contexts: Contemporary Approaches, Cambridge University Press, Cambridge New York, Durkheim, E., The Divison of Labour in Society, Free press, New York, Eco, U., Kultura Informacija Komunikacija, Nolit, Beograd, Ferari, V., Pravo i društvo, CID, Podgorica, Friedman, L. M., The Legal System: A Social Science Perspective, Russell Sage Foundation, New York, Friedman, op. cit. note

11 Geertz, C., Lokalno znanje: Eseji iz interpretativne antropologije, AGM, Zagreb,2010. Häberle, P., «Ustav kao kultura», Politička misao, Vol. 36, No. 3, 2000., p Hrvatin, B., Reforma pravnog obrazovanja, (url: Kloskovska, A., Masovna kultura: Kritika i odbrana, Matica srpska, Novi Sad, Luhmann, N., A Sociological Theory of Law, Routledge & Kegan Paul, London, Macaulay, S., Friedman, L. M., Mertz, E., Law in Action: A Socio-legal Reader, Foundation Press, New York, Malenica, Z. Jeknić, R., «Percepcija korupcije i borba protiv korupcije u Republici Hrvatskoj», Zbornik radova Pravnog fakulteta u Splitu, Vol. 47, No. 4, 2010., p Mezey, N., «Law As Culture», Yale Journal of Law & the Humanities, Vol. 13, 2001., p Michaels, R., «Legal Culture», in: Oxford Handbook of European Private Law, Basedow, J., Hopt K. J.,Zimmermann R. and Stier, A., (eds.), Oxford University Press, Oxford, Nelken, D., «Using The Concept of Legal Culture», Australian Journal of Legal Philosophy, Vol. 29, No. 1, 2004., p Pusić, E., Društvena regulacija, Globus, Zagreb, Radačić, I., Seksualno nasilje: mitovi, sterotipi i pravni sustav, TIM press, Zagreb, Visković, N., «Spolnost i pravo 1971.», Zbornik radova Pravnog fakulteta u Splitu, Vol 45, No. 3, 2008., p Silbey, S., «Legal Culture and Legal Consciousness», International Encyclopedia of Social and Behavioral Sciences, Pergamon Press, New York, Transparency International, Global Corruption Barometer, (url: Legal Acts: Same sex partnership act [Zakon o životnom partnerstvu osoba istog spola] Narodne novine No. 91/14. Criminal Code of Republic of Croatia [Krivični zakon Republike Hrvatske - nevažeći propis] Narodne novine No. 25/1977, 50/1978, 25/1984, 52/1987, 43/1989, 8/1990, 54/1990, 9/1991, 67/1991, 71/1991, 25/1992, 33/1992, 39/1992, 77/1992, 91/1992, 37/1994, 28/1996, 30/