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This research paper offers an overview of the main problems in defining and using the concept of legal culture, with special attention to how this may be relevant for scholars of criminal justice.
Scholars of criminal justice may be interested in comparing legal cultures to make sense of similarities and differences in crime levels or punitiveness (Nelken 2000, 2010). Alternatively, they may want to understand how trends in criminal justice spread by means of legal transplants or efforts at harmonization or collaboration as well as how they are reinterpreted or resisted. This research paper will first seek to clarify the meaning of the term legal culture and discuss how it may be used in doing research. It will then consider more specifically three of the key issues that arise in carrying out such investigations concerned with generating substantive findings about patterns of law or criminal justice in different jurisdictions. These concern units and boundaries, elements and aggregates, and coherence and change.
What Is Legal Culture?
Studies of law in relation to culture can cover a large range of topics including the role of culture in law (and the challenges of legal pluralism and multiculturalism) to the part played by law as culture, seen as a way of making meaning. Those interested in the relationship between law and culture might wish to study law as a cultural artifact, examine the way it becomes present in everyday life and experience, or through the media, or consider the role of law in accommodating cultural defenses or protecting cultural treasures. This research paper, however, is mainly interested in seeing how the concept can be of use in research into cultural variation in how law is experienced in social life and, especially, differences in the role law plays and expected to play. There are obvious implications here for students of criminal justice seeking to tease out the relationship between formal and informal social controls.
Research into comparative legal cultures can involve investigations into the extent to which law is party or state directed (bottom-up or top-down), the role and importance of the judiciary, or the nature of legal education and legal training. It may concern ideas of what “law” means (and what law is “for”). It is possible to discern legal culture in different approaches to regulation, administration, and dispute resolution. There may be important contrasts in the degree to which given controversies are subject to law, the role of other expertises, and the part played by “alternatives” to law, including not only arbitration and mediation but also the many “infrastructural” ways of discouraging or resolving disputes. With reference to criminal justice, the use of legal, non-state, or “informal” forms of social control deserves attention.
But legal culture remains a highly debated term. Even Lawrence Friedman, who pioneered its use in social science, describes it as “an abstraction and a slippery one” and that if he were to start over he might not use it again (Friedman 2006). There are several kinds of disagreements about what legal culture means or should mean (Nelken 1995, 2006, 2007, 2012). There is, for example, the question whether or not legal culture is a useful term as compared to alternative concepts such as legal tradition or legal ideology. Then there is discussion about what the term actually refers to – for example, to attitudes and/or behavior, or whether legal culture refers more appropriately at the popular or at the institutional level.
Confusion can easily arise where what appears to be a debate about the correct interpretations of a given legal culture in fact trespasses into these other areas. Blankenburg, for example, takes Friedman to be arguing that it is “folk” culture – popular pressure for legal change – that shapes differences in legal development and response. He offers, by contrast, a comparison of the very different use of courts in Germany and the Netherlands, countries that he argues, have similar folk cultures and very different institutional outputs. For him, infrastructural arrangements represent the key to differences in legal culture, and in his view, “there is no legal culture outside of institutions” (Blankenburg 1997). Yet, what Blankenburg wants to call legal culture others would call institutions or structures, as seen in the related debate over whether the low level of use of law in Japan is to be attributed to deliberate cultural avoidance of litigation or is rather a result of structural arrangements that block access to the courts (Nelken 1997).
It is also not always easy to tell where definitional questions end and empirical enquiries begin. How are we to distinguish legal culture from political, economic, or religious culture? Or take Friedman’s important distinction between “internal legal culture” which refers to the role in the law of legal professionals and “external legal culture” which refers to those individuals or groups who bring pressure to bear on the law to produce social change. Do lawyers belong to “internal legal culture” (as servants of the courts) or to “external legal culture” as agents of social groups and of individual litigants. What about the relationship between external legal culture and culture in general? What of the way judges incorporate lay definitions of appropriate behavior into their activities?
It can also be important to distinguish between legal culture and “the culture of legality” (stressing the “legal” before the word culture). The latter term – which corresponds very roughly to what in English is called “the rule of law” – is particularly common in those jurisdictions or parts of jurisdictions, for example, in the former Soviet Union, Latin America, or the south of Italy, where state rules are often avoided or evaded. These are places where – from a state perspective – there is a culture of illegality, and the point of talking of “legal culture” in such cases is to point to the normative goal of getting “legality” into the culture of everyday social and political life. This move seeks to reorient the behavior of such populations toward (state) law and/or encourage state law to respect certain limits of action. Whereas legal culture is a descriptive/explanatory term, the “culture of legality” is a normative and evaluative one. Keeping descriptive and normative meanings apart is necessary if we are to examine the sorts of legal culture that are more or less conducive to creating “the culture of legality”.
But it can also be argued that talk about culture or legal culture is rarely merely descriptive and is more often an interested intervention in debates. For the observer, cultural ideas are contested and connected to relations of power. Cultural repertoires include polarities, such as values and practices, ideas and habits, and innovations along with commonsensical ways of doing things. Culture is the product of historical influences rather than evolutionary change. It is marked by hybridity and creolization rather than uniformity or consistency (Merry 2012). At the same time, however, for social actors themselves, “law” and “culture” are words whose interpretation and definition have illocutionary effects (“this is the law” “that behavior is inconsistent with our culture”). Thus, the term “legal culture” may itself be used by judges, politicians, or others, in the course of making claims about what is or is not consonant with a given body of law, practices, or ideals. This use, as much prescriptive as descriptive or prescriptive through being descriptive, can “make” the facts it purports to describe or explain. Some scholars think the term must capture what these legal actors are trying to do (Webber 2004).
As this suggests, culture is a term that easily lends itself to misuse, providing an easy alibi for resistance to change. For Patrick Glenn, the idea of culture is suspect (as a replacement for talk of race) because of both its origins and its consequences. Usage also includes “essentialist,” overdetermined, overbounded, and xenophobic applications. With cultural analyses, scholars are tempted to orientalize behavior as foreign and irrational and ignore or downplay the importance of economic and related political drivers of behavior (Glenn 2003, 2004). The German word kultur indeed emerged as a defensive term used in romantic opposition to the French universalizing idea of civilization (for which today’s discourses of democracy and human rights could be considered equivalents). Yet, there is nothing to stop the scholar from describing (and commenting on) such uses of the concept. And Friedman’s use of the word culture is in fact much closer to the nonessentializing French idea. He stresses convergence and the role of modernity as we move to a global legal culture based round individualism, equality, and human rights (Friedman 2006).
Given that the goal of comparative work is to take us beyond ethnocentrism, we also need to ask whether there can be a universal concept of legal culture. How far is any given conception of legal culture inevitably itself a “folk concept” rather than an “observer’s” concept? For example, the Western idea of law as linked to the nation-state fits uneasily into places with overlapping plural legal systems. Instead of accepting Friedman’s own view of internal and external legal culture as neutral analytical categories, David Engel instead offers a cultural reading of them (Engel 2012). “Two aspects of Friedman’s imagery,” he tells us, “are particularly noteworthy. First, law is spatialized. It has an inside and an outside, and legal culture forms a kind of membrane between the two spaces. Second, the internal space is dead, desiccated, and inert. It is a place of bones without flesh and words without life. By contrast, the external space is alive, vital, and active. Outside the law, one finds life forces that act like water in the desert and bring to life the otherwise barren world of law.” Referring by contrast to the approach taken by the noted anthropologist Clifford Geertz (Geertz 1973), Engel points to Friedman’s circumscribed view of law as a dusty, entombed skeleton versus Geertz’s broad and unbounded view of classical Indian law as sun and cattle! “Friedman’s colorful imagery of law and legal culture,” he argues, “presupposes a pluralism of legal and normative spaces, whereas Geertz’s description of Indian law presupposes the opposite – a unity of law, government, culture, and belief” (Engel 2012).
For Engel, this concern with law having an “inside” and an “outside” is itself a reflection of the “project” of modernity, aimed inter alia at securing liberal legalism and secularism. Friedman’s conception of legal culture is linked to the aspiration to keep politics and economics subservient to law as well as the value of civil society playing its proper role as the source of the legal. Maintaining the metaphorical separation of inside and outside, and thereby affirming the “relative autonomy” of law, is central to the project of modernity. “The theory of modern law “presupposes that no one group in the society has a privileged access to religion and moral truth,” and the proper role of law is to establish a secular and neutral “process for conflict resolution” rather than to endorse one set of cultural practices or religious beliefs over another.” On the other hand, Friedman’s distinction may not carry all the “liberal legalist” implications that Engel attributes to it. It has been Friedman’s abiding concern to deny law’s autonomy so to show that it is what lies outside the law that actually animates and shapes it.
Working With The Idea Of Legal Culture
For this concept to be of value heuristically, it is essential to do more than treat legal culture as a descriptive synonym for the legal system or some part of it. If our goal is explanation, it can be helpful to start from what appear to be puzzling features of the role and the rule of law within a given society (Nelken 2004). 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? Why does Italy, whose public opinion is most in favor of Europe, have such a high rate of noncompliance? Why does Holland, otherwise so similar, have such a low litigation rate compared to neighboring Germany? Why in the United States and the UK does it often take a sex scandal to generate official interest in doing something about corruption, whereas in Latin countries why does it take a major corruption scandal to excite interest in marital unfaithfulness? Such contrasts can lead us to discover new insights – into the importance of “enforcement” as an aspect of law, the reasons people use courts, or the way shame and guilt cultures condition the role of law.
How we then put the term legal culture to use in such enquiries will depend on the disciplinary framework developed. To decide the appropriate strategies and methods to adopt, eyes must focus on disputes between (as well as within) continually evolving disciplines such as sociology, political science, or anthropology. For example, in line with competing approaches to social theory, legal culture will manifest itself through institutional behavior, as a factor shaping and shaped by divergences in individual legal consciousness, as a pattern of ideas that lie behind behavior, or as another name for politico-legal discourse itself. Studies of legal culture can also have different aims. Trying to make comparisons of legal systems more sociologically meaningful requires avoiding the risks of reifying culture as determinant and constraining of individual choices. A concern, by contrast, with illustrating the ongoing process of meaning – making in and through law overlaps with an interest in studying legal consciousness (Silbey and Ewick 1998, Silbey 2001).
For many authors, legal culture is measurable by asking people questions about their attitudes to the law. But we may also need to make sense of patterns of behavior of which the participants themselves are unaware. Even well-informed people living in India mistakenly think that the reason courts are slow is because the country has such a (relatively) high rate of litigation (Galanter and Krishnan 2003). Americans are convinced that their tort system regularly produces excessive and undeserved awards. But it turns out that, in large part, this impression is manufactured by the media (Holmes and McCaan 2004). Those societies where legal professionals show least concern for what Anglo-American writers describe as the “gap” or gulf between the “law in books” and “law in action” may not be those where the gap is least problematic but those where the gap is in fact overwhelming.
A problem that in regularly leveled against explanations that rely on the idea of culture is that of tautology. Why do Japanese do what they do – because they are Japanese! It adds little to say that Italians suffer extensive court delays because of their legal culture if legal delays are part of what we are referring to when we speak of Italian legal culture. The danger of tautology needs to be overcome if we hope to develop policy-relevant social science explanations showing how variables produce outcomes. If the concept of legal culture accounts for why a transplant takes or not, can the success of transplants provide clues to legal culture? (Kurchiyan 2009). Interpretative approaches, however, may be less embarrassed by using culture as “cause” and consequence. If social actors take “culture” to represent or require certain behavior or values, this may provide a reason for their actions. In the 1980’s, the appearance of league tables of relative levels of incarceration induced Finland (interested in being seen as similar to other Scandinavian countries) to move toward the average European imprisonment rate by reducing its prison population; Holland for its part felt enabled to do the opposite. Likewise, how far East European legal cultures come to resemble Western legal cultures, assuming this is desirable, in part depends on how far politicians, policy makers, and legal actors there believe they can escape the patterns inherited from the past.
Another way of avoiding tautology is to see legal culture as something that needs to be explained rather than as itself the explanation. Take again the question why Italy suffers such long court delays. Treated as part of legal culture, the issue is to discover the legal, economic, political, religious, and factors that help reproduce this feature of Italian legal life. In the first place, there are relevant laws, especially those that have to do with civil and criminal procedure. There is also the management and organization (or lack of organization) of the courts and legal profession and claims about the supply of law not keeping pace with the demand, economic interests, political priorities, etc. (Nelken 2004). The problem of course is that it can then prove surprisingly difficult to decide what factors are the crucial ones, especially as the relevant facts can often be elusive and are open to very different interpretations. Large companies can make use of judges as (paid) arbitrators outside the normal trial system. But small businessmen (the backbone of economic life in Italy) would seem to gain little from the current situation. If so, why do they not put more pressure on the politicians to do something? Lawyers and banks profit from this situation. But do they have veto power on reform? Hence, rather than the idea of culture providing pat solutions to our question, it leads (as perhaps is appropriate) to an infinite regress of causal puzzles regarding what shapes it.
Controversies: Three Issues In Comparing Legal Cultures
Research on comparative legal cultures necessarily mobilizes some assumptions about what it is that holds a culture together. But it may also help to revise these. We shall consider here questions connected to units and boundaries, elements and aggregates, and coherence and change.
Units And Boundaries
What is the unit we want to compare? In particular, is it (still) safe to identify the boundaries of legal culture with those of national jurisdictions? The search to understand and explain legal culture at the level of the nation-state certainly continues to be an important ambition of comparative law and comparative sociology of law, as seen in titles such as the “Japanese approach to law,” “Dutch legal culture,” and “French criminal justice”. But the student of legal culture will often want to focus at levels below and above that of the nation-state. On the one hand, the focus could be on the culture of the local courthouse, the working norms of different social and interest groups and professional associations, and the networks of individuals involved in pursuing, avoiding, or mediating disputes. On the other, we could study international institutions and regulators and the so-called third cultures of international trade, communication networks, and other transnational processes.
It can also be rash to assume any necessary “fit” between law and its environing national society or culture. Legal systems always have been modified by a variety of processes of borrowing, imitation, and imposition. Nation-states have never been the exclusive or even predominant source of norms. Their increasing insertion in larger bilateral or multilateral structures and networks means that there is now a wide gap between the (global) sites where issues arise and the places where they are managed (the nation-state). Different kinds of units emerge as objects and as agents of control. Instead of governments, the talk now is increasingly of “governance,” of how power is exercised at a series of other levels and by other institutions, in collaboration or otherwise with state bodies. The “denationalization” of rule-making means that transnational public and semipublic networks substitute, to an increasing extent, for national governments. Rule formulation and settlement increasingly take place within new agencies of transnational governance, such as NAFTA, the OECD, and the WTO, but also in many lesser-known public-private forums.
Naturally, this process varies by different areas of legal and social regulation. A contrast is often made between, on the one hand, those areas of law that are relatively internationalized, such as international business contracts, antitrust and competition policy, Internet and new technology, labor law, social law, and environment law, and, on the other hand, family law and property law. But experts in these latter fields frequently report evidence of international trends and cross-cultural influences even there.
As the world increasingly is tied together by trade and communication, people have the sense of living in an interdependent global system marked by borrowing and lending across porous cultural boundaries that are saturated with inequality, power, and domination. All this means that the purported uniformity, coherence, or stability of given national cultures will often be no more than an ideological projection or rhetorical device used by some of those within or outside a given society or other context (Coombe 1998). So we need to avoid reifying national or other stereotypes and recognize that these may often be no more (or less) than “imagined communities” or “invented traditions”. We may also need to be cautious about using terms that suggest boundaries at a time when many argue that it would be more appropriate to speak of “flows” (Appudurai 1995).
But claims about the decline of the nationstate should not be taken too far. Many new states have been created recently, and “failing states” are more often the cause of concern rather than seen as harbingers of a new order. Differences between legal cultures may mobilize or reflect wider social and cultural patterns that roughly coincide with national political boundaries. Such boundaries often coincide with language and cultural differences and represent the source of common statistics. The imposition of a common legal code and the common training of legal officials form part of attempts to achieve and consolidate national identity. And “borders” continue to play important instrumental and symbolic roles, not least in responding to immigration. There is even an empirical basis for psychological differences in national traits in the way people relate to each other (Hofstede 1980). Such different historically conditioned sensibilities may persist over quite long periods (though careful research is needed to avoid confusing short-term and long-term trends).
Even if we accept that the state is – in many respects – losing its centrality, it does not follow that what happens in the field of criminal justice necessarily follows this general logic. Criminal law continues to be a powerful icon of sovereignty, and the nation-state persists as a key site where the insecurities and uncertainties brought about by globalization are expected to be “resolved.” It is even claimed that the state may “act out” in responding to some crime problems precisely because it has lost power elsewhere (Garland 1996). More functionally, some argue that states are obliged to enforce a new harsher type of order required because of the dismantling of welfare protections mandated by neoliberalism (Wacquant 2009a, b). Each country may also have its own reasons for increasing punitiveness. If the United States has seen “governing through crime” in a range of domestic settings (Simon 2007), in many European societies state power has been used mainly to criminalize noncitizen flows. In places such as South Africa, the state has to underline its ability to provide public safety in order to convince the “global economy” that it is a “safe place” in which to do business.
One of the most important tasks of the student of legal culture is to try to capture how far globalization represents the attempted imposition of one particular legal culture on other societies. Importing countries are offered both by the Anglo-American model whose prestige is spread by trade and the media and by national versions of the more intellectually impressive continental legal systems embodied in ready packaged codes. The Anglo-American model is characterized by its emphasis on the link between law and the economy (rather than law and the state) and its reliance on legal procedures that prioritize orality, party initiative, and negotiation inside law. More than any particular feature of legal procedure, however, what does seem to be spreading is the common law ideology of “pragmatic legal instrumentalism,” the very idea that law is something which does or should “work,” together with the claim that this is something which can or should be assessed in ways which are separable from wider political considerations.
Elements And Aggregates
A problem linked to the task of identifying the unit(s) of legal culture is that of distinguishing the elements of (legal) culture as opposed to treating it as an aggregate. Cotterrell famously criticized Friedman for treating legal culture both as an element – discussing why people turn to law– and as an aggregate-as when speaking of American legal culture or modern or global legal culture (Cotterrell 1997). Glenn too tells us that what he finds particularly problematical is the employment of culture as a “holistic signifier” and as a “variable” (Glenn 2004). On the other hand, the distinction between aggregates and elements is not a hard and fast one. All wholes can be incorporated into yet larger ones, just as all elements can be broken into yet smaller ones. For example, the group “attitudes” toward the use of law that are at the center of Friedman’s use of legal culture can also be broken down into smaller elements. Indeed, Friedman thinks it is plausible to speak of each individual’s legal culture. And these individual attitudes or opinions are in turn themselves composed of measurable responses to a range of particular questions. Whether it is appropriate to go down or up in levels of abstraction will depend on the purpose of an enquiry, for example, whether are, comparing whole societies, or are seeking to explain interconnections within them.
Recently, Merry has argued that we need to break up the idea of legal culture into what she calls four “social dimensions.” The first is the practices and ideologies within the legal system, everyday way of getting things done, shared assumptions about good and bad clients, and other internal rules and practices, some of which are based on legal doctrine and others on categorizations shared by the wider society, such as ideas of race and gender. (As she says, this corresponds to Friedman term “internal legal culture.”) Then there is the public’s attitude toward the law. Is the legal system a source of corruption and ethnic preference, for example, or viewed as an institution that offers the rule of law for all people equally, regardless of their background? This, she suggests, is somewhat similar to what Friedman calls external legal culture. Thirdly, there is the question of legal mobilization, which refers to how readily people define their problems in legal terms, when they turn to the law for help. A fourth dimension is legal consciousness, the extent to which an individual sees him or herself as embedded in the law and entitled to its protections. Experience with the law, both good and bad, can change legal consciousness. It may encourage further use or may drive the litigant to avoid the law next time. Merry argues that these last two aspects offer the best way to understand the cultural dimensions of law and its relationship to a social context as well as providing a more satisfactory analysis of the processes of translation across legal fields and the hybridism of these fields (Merry 2012).
Nevertheless, others insist on the need to grasp the aggregate as a whole. Stewart Field, for example, argues that “actors do not live in a world of differentiated elements of institutions, formations, structures of feeling and traditions, however useful the distinctions may be as a heuristic device. The ultimate and impossible challenge that legal anthropologists and comparative lawyers must set themselves is to try to get something of the subjective feel of the normative pressures operating on the legal ‘other’ while making those pressures explicit in a way that native legal actors would not and perhaps could not do.” The goal for him is to show how “the interpretation of a wide range of operative legal concepts is shaped by distinct social connotations, because these practices only ‘make sense’ within particular sets of legal and broader social contexts and relationships. No doubt, these meanings are fragile, contested, and subject to change. But the argument is that there are distinctive cultural ‘logics’ at work, distinct ways of seeing into which the researcher must struggle to enter” (Field 2012).
Coherence And Change
The last way of thinking about what gives culture its hold on us is to ask what makes for the (alleged) coherence of legal cultures and the way this relates to the possibilities of change.
Do aspects of law in society come in “packages”? How do elements turn into a whole? What gives a unit its “unity”? For many writers, coherence (others might call it path dependency) is the key to “explaining” continuities in patterns of ideas and practices over time. It predicts how it is likely to respond to attempts at legal transfers. But for those critical of the concept of legal culture, the presumption of coherence is the problem not the solution.
Comparative lawyers and philosophers of law tend to define the term with reference to the activities of the various legal professionals and jurists who bear the responsibility of (re)producing purported coherence in legal materials. But they say little about what type or degree of coherence is required in actual practice, and their way of using the term is somewhat narrow for sociolegal enquiry. A variety of possible phenomena may be involved – opinions and attitudes, behaviors, texts, and institutional and organizational norms, ideas, and ideals. What are at stake may be psychological pressures to consistency, pressures for group conformity, institutional and organizational controls or routines, or even loyalty to legal or religious texts.
For some scholars, there can be interdependence between the elements that make up a given legal culture (as between the number of lawyers and the number of trials). Alternatively, coherence may be imposed by commentators, for example, when they categorize types of legal culture or legal “communities” in terms of ideal types. But others think that any connection exists (only) insofar as participants talk about it “as if” it is real. Merry, as we have seen, sees legal culture as no more than a framework with different overlapping elements with no necessary overall coherence – little more than a series of topics to investigate concerning institutions, attitudes, mobilization, and consciousness. For her, “Legal practices tend to be hybrid and creolized, formed of borrowings, transplants and translations of other legal practices in other places and times. Hence, it is unlikely that it will be coherent. Indeed, as with culture more generally, lack of coherence is what gives actors room for manoeuvre and innovation” (Merry 2012).
Legrand takes “the notion of “culture” to mean the framework of intangibles within which a community operates, which has normative force for this community (even though not completely and coherently instantiated), and which determines the identity of a community as community” (1997). But if culture is, to a large extent, a matter of struggle and disagreement, the purported uniformity, coherence, or stability of given national or other cultures will often be no more than a rhetorical claim manipulated by members of the culture concerned or projected by outside observers. In particular, as Roger Cotterrell tells us, it is judges and lawyers who attempt to sell the ideology of law as a “gapless system,” whatever they may know from their everyday practice in their offices or in the courts (1997).
Much depends on scale and perspective. Under scrutiny, even defined areas of law, such as those governing family relations, are far from coherent. But, seen cross-nationally, even apparently unconnected branches of law may in fact manifest remarkable levels of cultural similarity within a given society. As Whitman has claimed recently, in replying to criticisms of his “culturalist” approach to penal law, “the pattern that we see in comparative punishment is also the pattern we see in many other areas of the law. Indeed, I would claim it as a virtue of my book that it shows that punishment law cannot be understood in isolation from the rest of the legal culture. For example, American workplace harassment law differs from German and French workplace harassment law in very much the same way. The same is true of comparative privacy law .. .just as it is true of the law of hate speech and everyday civility” (Whitman 2005).
But even if legal culture possesses coherence, this does not stop it from changing. It can be salutary to recall the rapid transformation in attitudes toward “law and order” in the short period that elapsed from Weimar to Hitlerian Germany. What is clear is that any serious work on legal culture must make sense of both continuity and change. The strain toward coherence – whatever causes it – explains relative lack of change, the difficulty of change, and even the direction of change. But it does not stop all change. To go back to the previous examples of country differences, in legal culture, England and Wales have recently witnessed some important corruption scandals to do with parliamentary expenses that were not connected with sex. And Berlusconi, Italy’s last prime minister, is now being pursued for sex scandals apart from any corruption implications. Nonetheless, it is still fair to say that, in the UK, scandals concerning business-politics links are still much less salient than in Italy and Berlusconi’s fall from power depended more on the financial crash than his private life. In an ever more interconnected world, even resistance to outside influence is an active process rather than a result of cultural inertia.
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