In an era of globalization, "culture" is sometimes treated as a dirty word. For those who see the world as increasingly "flat," culture can seem to be merely a retrograde imposition of local prerogative that stands in the way of progress. Likewise, those who seek greater harmonization of human rights norms, commercial trade rules, or other legal standards may view culture as simply a monkey wrench in the machinery of global consensus and cooperation. In such debates, culture is often conceptualized as fundamentally pre-modern, something "they" cling to, but that "we" have long since jettisoned.
Two recent books - Law as Culture by Lawrence Rosen and Law, Culture, and Ritual by Oscar Chase - provide a welcome response to this "anti-culture" bias. Both works point to the enduring claims of culture as the necessary and inevitable mechanism by which human beings construct meaning out of reality. Indeed, the capacity for culture is seen as a crucial part of our very evolution as a species. Thus, culture is not simply a set of customs we can choose to put on or take off like clothing; it is woven into the fabric of our being. Accordingly, cosmopolitans no less than localists are using cultural categories, reflecting cultural assumptions, and betraying cultural presuppositions Moreover, as both books make clear, law and culture cannot be disentangled. From this perspective, we must not see law as simply an autonomous system of rules that regulates disputes. Law is instead constitutive of how members of a society envision themselves and their relations to each other.
Because of the ongoing importance of culture, we should not be surprised that efforts to harmonize both substantive norms and procedural systems run into difficulty on the ground. This is not news to comparative lawyers, of course, given their consistent efforts to conceptualize and categorize differences among legal systems. Yet, even for them these books are likely to be useful, in that they offer a richly textured analysis of culture as the driving force behind this inevitable legal pluralism. And while neither book really tackles the ultimate questions of how best to design legal institutions, procedural mechanisms, or discursive practices to manage this pluralism, they do make it clear that assuming cultural considerations out of the equation is simply not an option. This insight alone makes these books a welcome addition to the legal literature.
57 Am. J. Comp. L. 101 (2009)