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Comparing legal cultures of Eastern Europe: the need for a dialectical analysis

Published online by Cambridge University Press:  02 January 2018

Bogumila Puchalska-Tych  and
Michael Salter
Bogumila Puchalska-Tych
Affiliation:
University of Lancaster
Michael Salter
Affiliation:
University of Lancaster
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Extract

Comparative legal studies have been haunted by many unresolved scholarly problems of a methodological and theoretical nature which too often continue to be ignored within the literature. The deficiencies in theory and method of comparative legal studies have rightly been often blamed for marginalisation of this subject in legal education and practice. The aim of the present article is to contribute to this general debate by identifying and then analysing certain deficiencies of approach to the task of comparing western and socialist legal systems and cultures. Our main preoccupation is to address critically the methodology of comparative law not only for its own sake but also in response to the challenge raised by Bell's recent claim that legal theory has much to learn from reflecting upon the issues raised by the comparative enterprise.

Type
Research Article
Information
Legal Studies , Volume 16 , Issue 2 , July 1996 , pp. 157 - 184
Copyright
Copyright © Society of Legal Scholars 1996

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Footnotes

*

Although this is a joint piece of work, Bogumila Puchalska-Tych was, in principle, responsible for drafting the first three sections; Michael Salter for the subsequent ones.

References

1. Most comparative legal texts are either fully content with the present state of methodology and theory of comparative legal studies, or do not tackle this issue in a sufficiently comprehensive way; see Zweigert and Kötz Introduction to Comparative Law (Oxford: Clarendon Press, 2nd edn, 1992) (we also refer to the first edition of 1987); J Bell ‘Comparative Law and Legal Theory’ in Krawietz, MacCormick, Wright, eds Prescriptive Formality and Normative Rationality in Modern Legal Systems (Duncker & Humbolt Berlin, 1994). Others, such as Legrand put this problem high on their agenda by emphasising the failure of most comparative legal texts to address in a satisfying manner issues of methodology and theoretical approach to comparative legal studies; see ‘Comparative Legal Studies and Commitment to Theory’ (1995) 58 Modern Law Review 262; Comparatist at-Law and the Contrarian Challenge (1995b) Inaugural Lecture, Tilburg.

2. See G Frankenberg Critical Comparisons: Re-thinking Comparative Law’ in (1985) Harvard Int Legal Journal vol 26no. 2.

3. Bell, supra note 1 p 19.

4. This does not mean that it is possible to study one without the other; ‘A rule does not have any empirical existence that can be significantly detached from the world of meanings that characterises legal culture; P Legrand, 1995b. p 6. However, for the sake of conceptual clarity, and because of the limited scope of this paper, we would like to concentrate on the concept of legal cultures rather than that of law. We find promising the agenda outlined by Varga, who believes that studying legal cultures can help to transcend’ the horizon of comparative law [on its own] by going beyond the perspectives of both the positive law and its formal functioning.C Varga Comparative Legal Cultures, (Aldershot: Dartmouth 1992). p xv.

5. P Legrand, 1995, p 265.

6. Ibid.

7. ‘… comparative legal cultures offer the means to us by which our own culture can be reflected with the pattern(s) of another. … getting patterns is the way whereby any comparative approach can contribute to achieve it, that the human inclination which drives us to visualise everything largely absolutised and universalised, albeit it can at most be nothing but relative and particular, can eventually be moderated or somewhat counterbalanced.’ C Varga supra n 4, p xv.

8. Our findings could, we believe, find empirical support from other areas, and our theoretical reflections on the deficiencies of comparative methodology could be shown to have a more general import.

9. Ibid p 5.

10. This takes the from of ‘an undue accentuation of signifiers inevitably leading to the development and repetition of formal models’. Legrand, 1995b, p 5.

11. Ibid p 5–6.

12. Zweigert & Kötz, op cit, p 32.

13. The comparative legal scholars have been strongly divided on this issue. It is still possible to encounter views such as: ‘It might be sufficient to adopt what Zweigert and Kötz describe as the negative aspect of functionality - to attempt to eradicate all preconceptions of one's own legal systems when studying another’. J Bell supra note 1 p 21.

14. See the perception analysis of the constitutive role of prejudices in B Sherman ‘Hermeneutics in Law’ (1988) 51 Modern Law Review pp 386ff.

15. See H Gadamer Truth and Merhod (London: Sheed and Ward, 2nd edn, 1989). p 21.

16. See L Zedner In Pursuit of the Vernacular: Comparing Law and Order Discourse in England and Germany’ Paper for Workshop on ‘Comparing Legal Cultures’Macerata 18–20 May 1994, also published in (1995) 4 Social & Legal Studies 517–535; Gadamer, op cit p 293; C Harris and M Salter ‘On Heidegger's Account of Interpretation’(1994) New Comparisons, No. 17, pp 150–69.

17. D Nelken ‘Who can You Trust? The Future of Comparative Criminology’ paper presented at Workshop on Comparing Legal Cultures at Macerata 18–20 May 1994 p 9.

18. On legal formalism more generally see F Schauer ‘Formalism’ (1989) 97 Yale LJ 509 ff. A Weinrib, ‘Legal Formalism’ (1988) 96 Yale LJ pp 949 ff; D McBarnet and C Whelan's ‘The Elusive Spirit of the Law: Formalism and the Struggle for Legal Control’ (l991) 54 MLR 848; P Atiyah and R Sumners Form and Substance in Anglo-American Law (Yale: Yale Univ Press, 1987).

19. See Varga, op cit, Introduction, Zedner, op cit; Cotterrell ‘The Concept of Legal Culture’, paper presented at Workshop on Comparing Legal Cultures at Marcerata, May 1994.

20. For reasons which will later become clearer, this distinction is made for purposes of analysis only, and should not be taken to imply that this distinction is necessarily clear-cut, or that the every example of mainstream scholarship falls into two tidy and mutually exclusive camps.

21. This tendency can be found in many of the contributions to mainstream comparative journals such as ICLQ, in S Whittacker ‘Privity of Contract and the Law of Tort: The French Experience’ (1995) 15 OJLS 327–371, and is exemplified by P de Cruz A Modern Approach to Comparative Law (Dewenter Kluwer, 1993).

22. M Fromont Grands Systèmes de Droit Etranger (Paris: Dalloz, 2nd edn. 1994); cf Bell, op cit, p 19.

23. Bell has analysed this tendency: op cit, pp 21–2.

24. This is the case in relation to the major comparative textbooks of Zweigert & Kötz, op cit; Glendon, op cit; Marryman, op cit; Chloros (in Varga, op cit) de Cruz, op cit. Also the widely used Farrar and Dugdale Introduction to Legal Method (London: Sweet & Maxwell, 2nd edn, 1984) treats socialist legal culture in the same fashion.

25. 1987, op cit on p 333.

26. Op cit, p 300 (emphasis added).

27. R B Schlesinger Comparative Law: Cases, Text, Materials (New York: The Foundation Press, 4th edn, 1980) p 320.

28. Op cit, pp 181–84.

29. Romashkin's credentials are that of a Correspondent Member of the USRR Academy of Science. This book was published in Moscow.

30. At pp 22–23.

31. It can be generally assumed that these terms used to mean something radically different within the two ‘parts’ of Europe.

32. P Legrand European Legal Systems are not Converging’ (1996) 45 I CLQ 59 (emphasis added).

33. Most of the available sociological, philosophical and socio-legal literature on systemic transformation in Poland stress this point; see A Rychard Reforms, Adaptation and Breakthrough, (Warsaw: IFIS, 1993); G Blazyca & R Rapacki Poland into 1990s; Economy and Society in Transition (London: Pinter Publishers, 1991); E Wnuk-Lipinski ‘Ksztaltowanie sie nowego ladu instytucyjnego’ (The Shaping up of the New Institutional Order), in Spoleczne konsek wencje transformacji ustrojowej (Social consequences of systemic transformation), (ISP PAS Warsaw 1994); W Zelaniec ‘Philosophy and Ideology: The Case of Poland’ in Political and Philosophical Change in Eastern Europe (Illinois: The Hegeler Institute, 1993); A Jawlowska, M Kempny & E Tarkowska (eds) Kulturowy wymiar przemian spolecznych (Cultural dimension of social change), (Warsaw: IFiS PAS, 1993).

34. See Rychard, op cit p 80.

35. Supra note 2, p 41 2.

36. P Legrand 1995, op cit, p 265.

37. See W E Butler Soviet Law (Butterworths, 2nd edn, 1988) p 26.

38. E Wnuk-Lipinski, op cit, W Zelaniec, op cit, A Jawlowska, M Kempny, & E Tarkowska, op cit.

39. D A Kideckel ‘Us and Them. Concepts of East and West in the East European Transition’, in A Jawlowska, M Kempny (eds) Cultural Dilemmas of Post-Communist Societies, (Warsaw: lFis PAS, 1994) p 135.

40. See A Jawlowska, M Kempny (1994). op cit.

41. The replacement of the pre-war legal order for simple technical reasons could not have been completed immediately after the war ended. Also the political change did not occur as a simple, easy to complete task. For instance, just after the second world war in Poland, the strong elements of democratic system were well in place, and only after 1948 (the forced unification of the political parties) the system evolved into so called ‘soviet style’ communism. Moreover, the failure to collectivise the agricultural land together with the survival of independent cultural and intellectual centres, constituted some of the elements of the social base of the ‘thaw’ of 1956. The latter effectively ended the era of Stalinism or, as some comparative scholars would have it, ‘totalitarianism’, in Poland.

42. Pol-Pot in Cambodia has introduced a new Calendar starting a new era from his coming to power. Less drastic measures have been taken by for instance by the Polish communist government which was trying to re-shape national memory by officially celebrating only the anniversaries of those historical events which took place after 1945, apart from those connected with the history of the International Worker's Movement.

43. Op cit, p 10, see also p 26.

44. R David & J E C Brieley Major Legal Systems in the World Today (London: Stevens and Sons, 3rd edn, 1985).

45. See also Butler supra note 37. p 26.

46. Ibid p 168.

47. See David and Brieley, op cit, p 190.

48. Contrary to the more mainstream view of David & Brieley, Butler notes that for various reasons the distinction between the differences in economic order between western and Eastern societies ‘has reduced what seemed to be a distinction of principle to one of degree’ Butler 1988, op cit, p 2.

49. Butler 1988, op cit, p 1; see also A Ehrenzweig's review of J N Hazard ‘Communists and Their Law’ (1970) 58 California Law Review 1005, 1007.

50. A similar point applies even if we examine the formal developments such as the emergence in the early 1980s In some Eastern European countries of such institutions as Judicial Review, the establishment of the separate administrative court system in Poland with the High Administrative Court and the six branch offices throughout the country, the Constitutional Tribunal or the institution of the Ombudsman.

51. This argument is particularly weak in the light of the creation of the institutional provisions mentioned above and also taking into account the growing consumer movement or publications, which as far back as 1977 Advocated limiting the notion of legality to the observance of law by the authorities.

52. Zweigert and Kötz, 2nd edn, op cit, p 300.

53. Farrar and Dugdale, op cit, p 228.

54. G Blazyca & R Rapacki, op cit.

55. Both these terms can be related to the anti-positivistic school of Ehrlich and others, who stress the significance of law, as it is experienced and made sense of, on a grassroots level of social interactions.

56. Op cit, p 811.

57. Op cit, pp 676–77. What is more, although published in 1984 Farrar & Dugdale's Introduction to Legal Method (2ndedn) p 228 still refers to the show trials that communists systems used for educational purposes. In fact the last time these trials were held was around 1953. Glendon, Merryman and Chloros refer to many aspects of ‘communist legal culture’ which have long disappeared. One of them is the curriculum of the law schools, which on the whole got rid of subjects such as the history of communist parties.

58. See for instance M Cain & Ch B Harrington (eds) Lawyers in a Postmodern World (Buckingham: Open University Press, 1994); J McCahery & S Piccioto ‘Creative Lawyering and the Dynamics of Business Regulation’ in Dezalay & Sugarman (eds) Professional Competition and the Social Construction of Markets (London: Routledge, 1994); M S Larson The Rise of Professionalism: A Sociological Analysis, (Berkeley: University of California Press, 1977).

59. D D Barry and H J Berman The Soviet Legal Profession’ in (1968) 82 Harvard Law Review 33.

60. Ibid at p 40; It is not to suggest the existence or adherence of the lawyers to the universal principles of law, but rather to suggest the interactive participation of the soviet lawyers within the ‘legal culture’, which can be distinguished from, but still is constituted, within the broad political, economic and political spheres.

61. Glendon, op cit, p 676.

62. O F Robinson, T D Fergus & W M Gordon European Legal History (London: Butterworths, 1994). The curious feature of this voluminous book is that the discussion on socialist law was allocated one and a half pages.

63. The general consensus exists only on this basic level. The serious differences in approaching the problem of ideology in Eastern European societies is another defining feature of comparative legal scholarship.

64. Glendon, op cit, Merryman, op cit, Chloros, op cit, Zweigert and Kotz, op cit.

65. J Sojka ‘Transition to Democracy, the Challenge of the Unexpected’, in Cultural Dilemmas of Post-communist Societies (Warsaw: IFiS PAS, 1994). See H Arendt The Origins of Totalitarianism, (New York, 2nd edn, 1966); Z Brzezinski Totalitarian Dictatorship and Autocracy (New York, 1956), and most recently A Walicki The Totalitarian Experience: Philosophical and Sociological Aspects, Paper presented at Fifth Congress for Central and East European Studies, Warsaw, August 1995.

66. K Kloc, ‘Poland's Political System - Change and Future Scenarios’, in Poland into the 1990s. (London: Pinter Publishers, 1991); Markovits, op cit.

67. See the discussion on pp 160–161.

68. See C Geertz Local Knowledge: Further Essays in Interpretative Anthropology (New York: Basic Books, 1983).

69. Op cit, p 179.

70. Ibid, pp 238–39.

71. Frankenberg recommends the strategy of ‘differencing’ as one of the possible ways to prevents this. ‘Differencing is necessary to prevent the observer-comparatist from confusing the present content of (Western) ideas and concepts with the criteria of universal truth and logic’, p 414.

72. We draw on this from Zedner, op cit.

73. The textbooks by Zwiegert & Kötz, Glendon and Merryman are particularly conspicuous examples here.

74. Zweigert & Kötz, op cit, p 324, and p 301in the 1992 edition.

75. Beside those mentioned already - texts written by the Eastern European scholars contain a great number of references to ‘socialist legality.’ See for instance; K Grzybowski & V Gsovski (eds) Government, Law and Courts in the Soviet Union and Eastern Europe (London:Stevens and Sons, 1959); F Feldbrugge & W Simons (eds) Perspectives on Soviet Law for the 1980s (The Hague: Martinus Nijhoff, 1982); Romashkin, op cit.

76. ‘Socialist Legality: The Polish Case’, in F Feldbrugge & W Simons, op cit, p 109 (emphasis added).

77. According to Glendon and Merryman, op cit.

78. Glendon op cit p 676, Zweigert and Kötz op cit 1st edn p 303, 2nd edn p 301.

79. Op cit, p 44.

80. Supra note 74.

81. By comparing legal cultures, and not merely legal systems, ‘we hold an interest in the characterisation of individual legal cultures on the level of their genus rather than their species’, C Varga, op cit, p xix.

82. Op cit. D J Meador Impressions of Law in East Germany: Legal Education and Legal Systems in the German Democratic Republic (Charlottesville: University Press of Virginia, 1986).

83. See D J Shleef ‘Thinking Like a Lawyer: The Process of Professional Socialisation of Law Students’, Conference Paper Presented at the Law and Society Annual Conference, 29 May 1992.

84. For a discussion on dominant ideology thesis see Abercrombie et al The Dominant Ideology Thesis (London: Allen & Unwin, 1980).

85. Depending on the political climate, the law schools enjoyed fluctuating degrees of academic freedom and independence. For instance, during the 1980s, when the system despite the martial law was much weakened, the teaching in most universities was practically unrestrained by political censorship. Moreover, the Catholic University of Lublin, which enjoyed the status of private university throughout the communist era, has been a centre of thought independent from the state scholarship.

86. Markovits op cit, p 209.

87. Ibid.

88. Noam Chomsky, among many others, has been voicing similar views, most recently in his interview for Polish daily ‘Gazeta Wyborcza’, 30.12. 1995 1.1.1996, pp 11–13.

89. See M Salter and J Shaw, ‘Towards a Critical Theory of Constitutional Law’, (1994) 21 Journal of Law and Society 480ff.

90. See sections 126–135 of the Polish Civil Code of 1964, nullified by the Amendment to the Civil Code of 28 July 1990 (Dz v Nr55, poz 321).

91. These general rules were contradicted by a range of factors such as: the opposite, to postulated, social practice of unlawfully appropriating state property as ‘ownerless’, judicial practice mitigating the harshness of sentences for offences against state property, or governmental decrees serving the property interest of the nomenklatura, ie group property.

92. More generally see T Adorno The Positivist Dispute in German Sociology (London: Heinemann, 1970).

93. More generally, see Twining and Miers How To Do Things With Rules (2nd edn London: Weidenfeld and Nicolson, 1987) pp 165–189; Legrand, 1995, Gadamer, Hegef's Dialectic, op cit, p 9.

94. Bell has analysed this tendency, op cit, pp 21–2.

95. For instance: Glendon et al (1982 & 1985); Farrar & Dugdale (1984), op cit, Chloros (1978), op cit; Merryman (1990). op cit.

96. Zwiegert and Kötz advocate, for instance, that the problems to be solved by comparative study must be ‘cut loose from their conceptual context and stripped of their national doctrinal overtones.’ Zweigert and Kötz, 2nd edn, p 31.

97. Ibid p 34.

98. See R Unger The Critical Legal Studies Movement (Cambridge Mass: Harvard Univ Press, 1982) chl; Salter and Shaw, op cit, p 464ff.

99. See M Salter The Idea of Legal World’ (1994) 1 Int'l Jnl of the Legal Profession 291–295.

100. Ibid pp 295–300.

101. Ultimately a successful totalisation and fulsome contextualisation would render the very distinction between immanent and transcendent types of critique redundant.

102. See I Harden and N Lewis The Noble Lie (London: Hutchinson 1986) p 10; Salter and Shaw, op cit, pp 464–72.

103. ‘… not only is the legal culture of the Other invented by the comparatist, but that is invented through her native, distinctive form of cognitive and cultural capital.’ Legrand, 1995b, op cit, p 37.

104. Supra note 2, p 415.

105. Ibid p 416.

106. Supra, note 1, p 20.

107. Bell notes that: … law is not simply a set of norms of social facts, or even values, but a complex set of features defining and expressing a legal culture.’ Ibid p 19.

108. Unfortunately, Bell adopts a curious and arguable contradictory mixture of phenomenological/hermeneutic insights (which are comparable with dialectics) with a more behaviouralist, functionalist and objectivist standpoint that certainly is not eg legal culture is defined as that which lawyers ‘do’: op cit, p 20.

109. A Garapon provides inspiring examples of overlaps between popular and legal cultures in ‘French Legal Culture and The Shock of Globalisation’, Paper for Workshop on Comparing Legal Cultures Macerata 18–20 May 1994.

110. The need to recognise the value of the ‘local’ has been postulated by C Geertz in Local Knowledge: Further Essays in Interpretative Anthropology, (New York: Basic Books, 1983).

111. Zedner (1994), op cit, pp 1–2. See also supra note 6.

112. Frankenberg, supra note 2, p 424.

113. ‘…the study of comparative legal cultures can be instrumental in making anyone confronted with the truth of how both the legal set-up, Rrooted deeply in a nation's history, and the various games it offers, are not to be regarded simple as the fruits of human wisdom or the unrivalled embodiment of eternal values, but as something more worldly und human, which is neither naturally given nor unsurpassable.’ Varga, op cit, p xv (emphasis added).

114. This is not to deny the value and usefulness of furnishing the field of comparative study with many other understandings of the ‘legal culture’. The one presented here does not stress specifically elements such as the techniques of legal practice or judicial style. It rather tries to embrace the multitextuality of the legal cultures as a ‘system of legal stipulations and arrangement’, that can be considered as ‘hardly more than potentiality which can only be considered as genuine fact of social reality in nothing but its form of concrete actualisation, made by the historically given, individual act of application.’ Varga, op cit, p xvii.

115. Barry & Berman, (1968). op cit; Inga Markovits (1988), op cit; David & Brieley (1985). op cit.

116. L Friedman ‘Some thoughts on Comparative Legal Culture’ in Clark (ed) Comparative and Private International Law: Essays in Honour of John Henry Merryman on his 70th Birthday (Berlin: Duncker and Humbold, 1990).

117. See the interesting discussion included in Cotterrell 1994, op cit.

118. In the study of relatively specific legal contexts, the concept of legal culture may be appropriate to embrace an entire contextual matrix in which the state law operates', in Cotterrell 1994, op cit, p 10; see also Varga, op cit, pp xv-xxiv; Zedner, op cit; Nelken, op cit.

119. See Salter 1995, op cit; M Salter ‘A Dialectic Despite Itself Overcoming the Phenomenology of Legal Culture’ (1995) 4 Social and Legal Studies, 1995 pp 453–477.

120. See Frankenberg, quoted supra note 74.

121. See J Atkinson ‘Ethnomethodological Approaches to Socio-Legal Studies’, in A Podgorecki and C Whelan (eds) Sociological Approaches to Law (London: Croom Helm, 1981) pp 201–33; P Amselek ‘The Phenomenological Description of Law’ in Natanson Phenomenology and the Social Sciences (Evanston: Northwestern University Press, 1973) 367–449.

122. Atkinson 1981, op cit; Salter 1989, op cit; Salter, 1995, op cit.

123. Zedner 1994, op cit, p 5.