Legal culture across the frontiers of the nation state.

Some scholars’ papers envision a European or global legal culture. This global legal culture will interact with the national legal cultures and will fundamentally change legal practice, even ostensibly local legal practice. Some reflections on blending legal cultures in the world arena have been initiated.

J. Smits says that traditionally, the analysis of legal culture has been on this national level: the existence of legal cultures is usually assigned to countries or groups of countries. Although this probably was true in the past, increasing Europeanization and globalization may have made the situation different.

The concept of legal culture plays an important role in the debate about the unification of private law within the European Union. The question whether national cultural differences or differences between the civil law and the common law tradition, in particular, stand in the way of establishing a uniform private law led to a fierce debate.

The scholar offers a general account of how we should deal with legal culture in the European context. The point is made that when discussing the Europeanization of private law, we should turn away from national legal cultures and pay more attention to so-called ‘cultural segments’, legal cultures that are not national but functional in nature and cross state borders.

There are persuading reasons for this argument as the European experience of the last four decades has broadly confirmed that the elements of a common European legal identity are present, not only in traditional areas like civil and commercial law, but also in the domain of public law, including constitutional, criminal, administrative and procedural law. This is evident also from the case law of the European Court of Justice, the highest-ranking body responsible for interpreting the European Union law.

Further on the European Union enlargement clearly calls for a thorough analysis on the mainstays of the common legal culture in Europe so that the associated states can better understand one of the most crucial parameters for their harmonisation, namely law as a social science.

Charles H. Koch states two plausible vehicles for the creation of a global legal culture: The World Trade Organization's Dispute Settlement Bodies, globalizing commercial legal cultures, and the United Nations' International Court of Justice, globalizing rights. These two tribunals not only suggest plausible global adjudicative systems, if not the final versions, but already provide some real world experience.

The approach relies more directly on the experience of two more developed centralizing court systems, the US federal judiciary and the European system comprising the European Union's European Court of Justice (ECJ) and European Court of Human Rights. The European tribunals offer a recent and particularly valuable experience in the merging of national laws into a larger legal culture. In addition, the ECJ demonstrates the progression of open market adjudication into adjudication of nearly all of society's issues.

The scholar argues for blending civil law thinking with common law thinking in evolving a global legal culture. This approach is more than transatlantic chauvism: these two legal models have migrated around the world, for good and bad reasons, so that they cover about 70% of the world's population. Again and with emphasis, the attention to the civil law and common law models support only a potential first generation of a global legal culture. Other legal cultures surely will have impact and the creative capacity of future generations will eventually be crucial. All in all, today lawyers seek to lay the groundwork for and encourage thinking about the dimensions of an emerging global legal culture.

References

Cotterrell, R. Law in Culture. Ratio Juris, Vol. 17, No. 1, pp. 1-14, March 2004. Available at SSRN: http://ssrn.com/abstract=548090

Friedman L. ‘The Place of Legal Culture //Law and Sociology: Current Legal Issues, Michael Freeman (ed.), Oxford, Oxford University Press, 2006.

Koch, C.H. Envisioning A Global Legal Culture - http://ssrn.com/abstract=376760

Legal Culture - www.wikipedia.org

Legrand P. Fragments on Law-as- Culture. - Deventer, Kluwer, 1999

Merryman J., Clark D., Comparative Law: Cases and Materials - Charlotsville, The Michie Company, 1978.

Nelken D. Using the concept of legal culture - http://www.law.berkeley.edu/institutes/csls/nelken%20paper.pd

Smits J.M. Legal Culture as Mental Software, or: How to Overcome National Legal Culture: -http://www.unimaas.nl/bestand.asp?id=7853

Assignments.

· Compare the definitions of Legal Culture given in the text.

· Highlight the key features when the concept under study being defined.

· Elaborate on different backgrounds and frameworks within which Legal cultures can be examined and set your own examples.

· Argue for or against the thesis of blending legal cultures along with EU enlargement.

Appendix