The Politics of Legal Cultures
December 5, 2008
Retfærd: The Nordic Journal of Law and Justice, 2008
Sociology and anthropology of law were partly developed from inception to empirically address the complexity of the relationship between law and society. Many of their insights into how law is socially constructed through the interaction between cultural, religious, economic and political factors remain incompatible with the aims and concerns of mainstream legal scholarship. Most social scientific approaches to the study of legal institutions and legal behaviour have revealed the plurality of forms of law, demonstrating that law can simultaneously manifest itself in different forms and at different levels of social reality. In contrast, various schools of legal positivism have conceptually separated law from morality, legality from justice, and facts from norms, in order to create a normative basis for justifying the unity and autonomy of law. This paper starts by exploring the tension between Western and Islamic legal cultures of immigrant communities living in the west. It then goes on to argue that the use of such antinomies as facts and norms, or law and morality, which are employed by legal theory in order to conceptually organise itself, diverts our attention away from the fact that law, whether it is defined as the command of the sovereign or the inner order of associations, is not divided into two opposing or contradictory poles. Instead, it consists of countless fragments which are not necessarily related in a formal rational manner.
Number of Pages in PDF File: 24
Keywords: Legal Cultures, Living Law, Pluralism, Sharia Law, Gender, Rationality, Modernization, Immigration
Date posted: January 7, 2009 ; Last revised: March 30, 2009