Comparative Legal Cultures

I have taught Comparative Legal Cultures at Utrecht University School of Law from 2007-2016.

Some remarks from the student evaluations in the last few years:

“I thoroughly enjoyed this course.”

“I did not like the vagueness, it was neither law neither sociology.”

“It was nice, I warmed to the topics: before I didn’t believe in comparative studies, and now I do. So, well done!”

“First I really hated it, but after a while I became more interested in the subject of seeing law as a cultural aspect.”

“I would like the expected research method to be elaborated upon slightly more.”

“I went in very negative, saying that this isn’t my type of course but I ended up enjoying the course. It broadened my horizon.”

Even a publication based on research by students is possible. In 2009-2011 Barbara Muszynska (from Poland) and Petra Nováková (from the Czech Republic) followed the course and wrote an excellent paper comparing the legal and empirical data concerning corruption in their home countries. Together we rewrote the paper, and in spring 2012 it was published in the Comparative Law Review. Good experience!

 

  1. Course overview

 

Course Motto

The end of our exploring,

Will be to arrive where we started,

And know the place for the first time.

T.S. Eliot (1943)

 

Structure of the Course

The course consists of 14 meetings. The first six classes are general lectures. They will provide you with the most important concepts, problems, insights, basic working material, and questions you need to pose when studying legal cultures comparatively. This first part is a lot of reading, so be sure to keep up. Together with a discussion of some typical features of Dutch legal culture, we will explore the meaning and implications of the concept of ‘legal culture’ and the possibilities to ‘compare’ legal cultures. We will discuss ‘national culture’ and possible answers to the question whether ‘legal transplants’ are possible and if so, what we mean by that. Very important is that the concept of legal culture is partly rooted in law, partly in the discipline of sociology and anthropology. Sociology and anthropology are empirical disciplines, unlike law that is a normative discipline. We will discuss the tensions this leads to.

You need to do an Open Book Exam on the reading material and lectures of the first six classes. Do not think that an open book exam is easier than a normal exam.

The second part of the course consists of eight working groups. All students have to give a presentation in pairs, and lead the discussion on their presentations, including the particular literature of that working group. Each working group we focus on a different legal topic or problem that is of interest to study comparatively, for example the popularity of court annexed mediation, the configuration of state-/church/religion relations, how to deal with multicultural society, the rule of law in CEE countries, and lay participation in the legal system. The literature for each working group functions as a starting point for research. Students are free in their topic, as long as it is related to the literature of that working group. For their research and presentation, students also need the knowledge and insights from the first part of the course.

The format of presentations and discussion in class is like a conference workshop. This means that right after the presentation we have room for questions & answers, and for discussion. The students who gave the presentation should also lead the discussion. The other students in class ask questions, give feedback on the assumptions, choices, and methodology of the research, and contribute to the discussion. These questions, feedback, and discussion should be seen as contributing to better research for everybody (later presentations, and papers).

Doing research means that definite answers do not exist. The search is for understanding how law and legal practice connects to the cultural values and history of a country. ‘Comparing’ is a tool for a better understanding. There is a lot of trial and error in research, and especially in the relatively new field of comparative legal cultures, methods and arguments are provisional. This does not mean however that ‘anything goes’. Like in law, some methods and arguments are more convincing than others, and some are plain nonsense. In this course you learn how to do sound comparative legal research, and how to avoid the pitfalls.

You close the course with a comparative paper. The topic is free, but must be different from your presentation. You can write the paper alone or with another student.

 

Course Material

  1. Geert Hofstede, Gert Jan Hofstede and Michael Minkov, Cultures and Organizations, Software of the Mind, McGraw-Hill: London etc., 2010 (third ed.). NB We only read the first 300 pages. Buy a hard copy for less than € 20, or make copies, or buy an eBook. During this course, we call this book ‘HHM’.
  2. Reader for Part 1 of the course.
  3. Articles for Part 2 of the course (will be made available later). You need to read the articles in order to be able to discuss the presentations in class.
  4. Recommended: Ian Curry-Sumner and others, Research Skills, Instruction for lawyers / Onderzoeksvaardigheden, Instructie voor juristen, Nijmegen: Ars Aequi Libri, 2010

 

  1. Programme (2015-2016)

 

Lecture 1

Tu 10 Nov – Introduction to the Discipline by Way of the Example of Dutch Legal Culture

Jaako Husa – Comparative Law as a Discipline. A Short History

In: A New Introduction to Comparative Law, 2015, p 6-15

Geoffrey Samuel – Problems and Promises of Comparative Law

In: Introduction to Comparative Law Theory and Method, 2014, p 8-24

Ido de Haan – Politics between Accommodation and Commotion

In: Emmeline Besamusca & Jaap Verheul (eds.) Discovering the Dutch. On Culture and Society of the Netherlands. Amsterdam University Press, 2014, p 33-43

Wijnand Mijnhardt – A Tradition of Tolerance

In: Emmeline Besamusca & Jaap Verheul (eds.) etc., p 121-131

Wibo van Rossum – Legal Culture

In: Emmeline Besamusca & Jaap Verheul (eds.) etc., p 287-296

Paul Schnabel – Distinctive within the Global Fold?

In: Emmeline Besamusca & Jaap Verheul (eds.) etc., p 83-94

 

Lecture 2

Th 12 Nov – Delineating Comparative Legal Cultures

Geert Hofstede, Gert-Jan Hofstede & Michael Minkov, Chapter 1, The Rules of the Social Game

In: Cultures and Organizations, Software of the Mind. McGraw-Hill: London etc., 2010 (third ed.)

Jaako Husa – A Member of the Family of Legal Studies

In: A New Introduction to Comparative Law, 2015, p 30-48

Jaako Husa – Need for a Yardstick for Comparison – Tertium Comparationis

In: A New Introduction to Comparative Law, 2015, p 148-151

Jaako Husa – Differences and Similarities

In: A New Introduction to Comparative Law, 2015, p 154-179

Lawrence Friedman – A Few Thoughts on Ethnography, History, and Law

In: June Starr & Mark Goodale (2002) Practicing Ethnography in Law. New York: Palgrave Macmillan, p 185-189

 

Lecture 3

Tu 17 Nov – Dimensions of National Cultures 1 & How to Study Them

Geert Hofstede, Gert-Jan Hofstede & Michael Minkov, Chapter 2 Studying Cultural Differences, Chapter 3 More Equal than Others, Chapter 4 I, We, and They

In: Cultures and Organizations, Software of the Mind. McGraw-Hill: London etc., 2010 (third ed.)

 

Lecture 4

Th 19 Nov – Dimensions of National Cultures 2

Geert Hofstede, Gert-Jan Hofstede & Michael Minkov, Chapter 5 He, She, and (S)he, Chapter 6 What is Different is Dangerous, Chapter 7 Yesterday, Now, or Later?, and Chapter 8 Light or Dark?

In: Cultures and Organizations, Software of the Mind. McGraw-Hill: London etc., 2010 (third ed.)

 

Lecture 5

Tu 24 Nov – Legal Transplants and the ‘Mirror Thesis’

Pierre Legrand – The Impossibility of ‘Legal Transplants’

In: 4 Maastricht Journal of European & Comparative Law, 111, 1997

Gunther Teubner – Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences (only page 1-14)

In: The Modern Law Review Limited 1998 (MLR 61:1, January). Blackwell Publishers, Oxford and Malden, USA, p 11-24

Alan Watson – Legal Transplants and European Private Law

Ius Commune Lectures on European Private Law, 2000

Geoffrey Samuel – Internal and External Perspectives

In: Introduction to Comparative Law Theory and Method, 2014, p 60-63

 

Lecture 6

Th 26 Nov – Comparative Legal Cultures: Overview of Promises and Problems

David Nelken – Legal Cultures

In: David S. Clark, Comparative Law and Society. Edward Elgar Publishing, 2012

Geoffrey Samuel – Hermeneutical Method

In: Introduction to Comparative Law Theory and Method, 2014, p 108-120

 

(1 Dec Open Book Exam)

 

Workshop

Th 3 Dec – Preparing the Research and Presentations

Geoffrey Samuel – Asking the Right Question

In: Introduction to Comparative Law Theory and Method, 2014, p 25-44

 

 

PART II – Presentations & Discussion

Week 5

5.1. Tu 8 Dec – State and Religion

* Bijsterveld – Equal Treatment of Religions? An International and Comparative Perspective

* Gaudreault-DesBiens & Karazivan – The ‘public’ and the ‘private’ in the common law and civil law traditions: legal traditions as reasoning templates for the regulation of religion?

* Greenhouse – Separation of church and state in the United States: lost in translation?

5.2 Th 10 Dec – Export of Democracy and the Rule of Law

* Hendly – ‘Telephone Law’ and the ‘Rule of Law’: The Russian case

* Krygier – The Fall of European Communism: 20 Years After

* Kurkchiyan – Russian Legal Culture. An Analysis of Adaptive Response to an Institutional Transplant

 

Week 6

6.1 Tu 15 Dec – Family Law

* Antokolskaia – Family Law and National Culture; Arguing Against the Cultural Constraints Argument

* Dowd – Law, Culture, and Family; The Transformative Power of Culture and the Limits of Law

* Hodson – Fairness in Family Law across Europe; A Pan European Ideal or a Pandemonium of Cultural Clashes

6.2 Th 17 Dec – Accepting ‘cultural arguments’ in court

* Hellgren and Hobson – Cultural Dialogues in the Good Society; The Case of Honour Killings in Sweden

* Rossum – Dutch Judges Deciding Multicultural Legal Cases

* D’hondt – The Cultural Defense as Courtroom Drama; The Enactment of Identity, Sameness, and Difference in Criminal Trial Discourse

 

21 Dec – 3 Jan NO CLASSES

 

Week 7

7.1 Tu 5 Jan – Legal Regulation of ‘Harmless’ Behaviour

* Feinberg – Offense to others

* Ferguson – ‘Smoke gets in your eyes . . .’; The criminalisation of smoking in enclosed public places, the harm principle and the limits of the criminal sanction

* Mill – Of the limits to the authority of society over the individual

7.2 Th 7 Jan – Lay Participation in the Legal System

* Hans & Vidmar – Jurors and Juries

* Malsch – Lay Participation in the Netherlands Criminal Law System

* Nuffer – Lay Participation in Criminal Justice

 

Week 8

8.1 Tu 12 Jan – Tort Law as Cultural Practice

* Haltom & McCann – Framing Fast-food Litigation

* Hand – The Compensation Culture; Cliché or Cause for Concern?

* Lewis & Morris – Tort Law Culture; Image and Reality

8.2 Th 14 Jan – ADR and the Law

* Aeken – Civil Court Litigation and Alternative Dispute Resolution

* Hedeen & Coy – Community Mediation And The Court System; The Ties That Bind

* Saul – The legal and cultural roots of mediation in the United States

 

 

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