The Politics of Legal Cultures
Reza Banakar REZA BANAKAR1
Summary: 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. Keywords: Legal Cultures, Living Law, Pluralism, Sharia Law, Gender, Rationality, Modernisation, Immigration
This paper argues that we cannot satisfactorily explore the interaction between Western legal cultures, which emphasise democratic values and principles of human rights, and the legal cultures of certain Muslim immigrant communities, which are neither based on Western democratic principles nor are sensitive to Western standards of human rights, without considering the political processes through which such interactions are realised. In this study, the relationship between Western and Islamic legal cultures of the immigrant communities living in the West is concep1 Reza Banakar, Ph.D. (Lund), is Professor of Socio-Legal Studies at the School of Law, University of Westminster, London. This paper was presented at the opening of the Centre for Studies of Legal Cultures at the Faculty of Law in Copenhagen on 7 March 2008. A longer version of this paper will also appear in 53 (2008) Scandinavian Studies in Law.
Jurist- og Økonomforbundets Forlag
RETFÆRD ÅRGANG 31 2008 NR. 4/123
tualised, not only in terms of the compatibility of their value systems, but also in terms of the imbalance of power and authority which shapes this relationship. Which factors influence the interface of legal cultures, where one legal system is operating within the jurisdiction of the other and, thus, is subject to its conception of legality and moral standards? To what extent is the acceptance or rejection of the legal culture of the »other« a function of an assessment of the actual compatibility of the cultures in question, that they can or cannot coexist in the same social space, and to what extent is it the outcome of legal ideologies and transient socio-political interests? The remainder of this paper is divided into four parts. The next section, part two, explores the interaction between legal cultures by reference to three case studies: 1) a study of how the Bolsheviks attempted to engineer the modernisation of the Muslim parts of Soviet Central Asia during the1920s; 2) a 20-year-old case of domestic violence from the lower court in Sandviken in Sweden (tingsrätten i Sandviken) where the court regarded the cultural background of a Kurdish immigrant as a mitigating circumstance in sentencing; and 3) the negative reactions to the Archbishop of Canterbury’s...