When considering culture, one does not typically think of law. However, if one thinks hard, they can see how law is in the background of many discussions of culture. This creates a very complex question within both modern and ancient society as to what the line has been or is between law and culture and whether law defines culture or culture defines law? This question is surely one that cannot be easily answered throughout the ages due to the aspects of both law culture that tend to go hand in hand and play off of each other. In fact, when carefully analyzing the connection between law and culture, one can infer that the creation of legal meaning always transpires through a cultural medium, (Rosen, L., 2006). This paper will explore the juxtaposition between law and culture and how law derives its essence from the very culture that it sets itself out to protect. This premise will be explored through the analysis of cultures around the world in both ancient and modern times in order to explore the line between culture and law and how that line is continuously blurred throughout the course of history.
In order to start a parallel between law and culture, it is essential to assess how law has gotten its meaning. Historically speaking, law has come into being through principles and ethics that have been debated and discussed by philosophers, rulers, and the aristocracy, (Berman, P., 2009). That being said, the law became established into being with the purpose of sheltering or upholding cultural ideals. This principle has what has molded and shaped law over the ages as it morphed itself to the very cultures and peoples that it was created to protect.
One ancient example of how law relates to culture is how the ancient civilizations went about protecting law. What law did was to solidify the nation or the formation of a people. If one studies the first formation of great civilization in societies such as the Ancient Egyptians, there was a clearly defined governmental system and law that upheld their culture for many dynasties. This is a classic example from the ancient world of how law and culture truly do compliment one another and are necessary for the other to exist. What is fascinating about analyzing the Ancient Egyptians is how their society and culture was principally protected. The reason for this is because the connection between law and culture can be clearly seen at the defining moment of when tribes of people organized and formed one of the greatest civilizations that ever lived. The Ancient Egyptians structured their society and came up with innovative inventions that even modern society has still not caught up with in some ways. The root of this success was the preservation of a cultural identity through the imposition of laws.
One modern example is how indigenous have begun to organize to protect their interests through law, (Muehlebach, A., 2003). This illuminates another aspect of how culture and law are interrelated. If one were to study the Native Americans that are indigenous to the United States, they would likely not know that these individuals have the third court system of the United States, (Muehlebach, A., 2003). This court system is very unique in that it handles all tribal matters and negotiates settlements and taxation agreements within the United States, (Mezey, N., 2001). The court system for the Native Americans in the United States is truly unique in that it provides many more protections to indigenous rights than other nations in the world. That being said, there is still a quintessential debate as to whether the United States has adequately paid restitution for the damages that they caused to the Native Americans and whether there is adequate law within the United States to protect these cultures from further destruction. The issue is very divided and the relation between law and culture is demonstrated yet again, but in this case law is not being the vessel that defines culture, but the vessel that is trying to protect culture. This sheds another light on the role and definition of law and how it relates to culture.
Another aspect of the debate between law and culture can be seen from taking a look into the Chinese legal system, (Rusokla, T., 2002). The reason that the Chinese system is an excellent example of the debate between how law and culture are interrelated is that China represents the crucial divide between the East and the West, (Rusokla, T., 2002). In studying the divide between the two ideologies, there are many perspectives that view China has having no “real law.” This brings up an interesting perspective pertaining to the debate between law and culture. The reason for this is that law is defined as a different instrument in different cultures. When someone says “real law” in a comparison between the East and West, they are trying to compare the common law versus the civil law in the sense of how continental Europe evolved their legal systems and how they spread to the Americas. What is the contrast is relating to how Asia was secluded from how these legal systems evolved. In China, the law was structured different consisting of a way of being. The principles of Confucius were integrated into the cultural expectation that complemented the laws expected of society, (Rusolka, T., 2002). This casts a different light on the debate between law and culture in the way that how one conceptualizes the body of law to have a different meaning in different legal systems. This is how the law in China may not be “real” to a Westerner, but to a Chinese person, it is to be understood to mean something different that is associated with their culture that is also so different from Western nations.
A final example of how the debate between law and culture is fascinating is when one investigates Sharia Law in the Arab countries of the Middle East. This example brings up another example of the dimension of the term law. That dimension is referred to the element of law as it relates to culture and religion. The Middle East is a prime example of how law is integrated into the religious aspect of the Arab culture. There is an enormous inclination for the people from that part of the world to be Muslim. This happens so strongly that the societies of the Middle East adhere to Sharia Law that is so dominant that it is integrated into the legal systems of these independent nations. This is such a fascinating depiction of another aspect of how law and culture relate to one another. To a person with a Western perspective, the proximity of church and state is a notion in the Middle East that is frightening to them. Sharia Law is the epitome of the illustration of how law also upholds cultural and religious ideals.
The debate between law and culture also further is extended when we explore the different dimensions of culture. Culture has historically included many different facets. Some examples of culture have included food, music, architecture, tradition, religion, and philosophy. When comparing these facets of culture to law, one can see how law is an element of these pieces but not the key component from the outside; however, if the person looks deeper into the comparison, the fundamentals of culture and way of life within a nation are rooted in law. This then probes the question as to how law allows culture to evolve or whether law inhibits the development of development of culture through confining it?
When exploring this divide between law and culture, it is wise to return back to how law cannot be analyzed or assessed without comparing the pillars of culture that contributed to its formation. Looking into how the United States legal system was founded, it is quite fascinating to see how many cultural roots formed the pillars of a society. For example, the United States legal system was formed from European Common Law principles, (Berman, P., 2009). These legal principles from Europe can be traced back to laws from the Roman Empire in many cases, (Berman, P., 2009). These notions and principles of law, culture, and society go back ages and have intertwined into the successful evolution of society. How this pertains to the United States is that the founding fathers selected pieces of these ideals as others did before them and founded a nation and culture that we see today. The English did the same when they were forming their country all the way back to King Arthur. The foundation of a culture is based in the law that confines it. Looking at America, there is also an influence from the French when looking at property law, (Berman, P., 2009). This influence has greatly shaped the American culture that we see today pertaining to buying and selling real estate. If one looks into the American legal culture carefully, they can see a great deal of connection to its European roots. Returning back to the Native Americans, their court system also has European roots in its foundation even though they are protecting the Native Americans indigenous to its continent. This demonstrates how the culture in America is directly tied to the legal system that was founded based on the roots of America that were derived from Europe.
The final component of culture that is relevant to law is a group’s need for self determination in order to legitimize themselves as a culture or group, (Muehlebach, A., 2003). Self determination has increased the application of law to the foundation of culture. When analyzing indigenous groups around the world that have experienced discrimination, there has been a modern trend for these groups to define themselves and to fight for their rights. Self determination has governed another facet of the interrelation between law and culture because these indigenous groups are fighting to protect and observe their cultures and traditions regardless as to whether modern society may view them as primitive, (Muehlebach, A., 2003). This has led to a new kind of legislation that is the opposite of what was experienced in the past. Previously, the need for cultures to come together and establish an order formulated law. Now, with self determination and fighting for rights we see a culture governing what the law is instead of the reverse. This has caused a great deal of interesting jurisprudence that has been debated, particularly pertaining to indigenous rights around the world that are trying to protect the traditions of their ancestors from centuries ago, (Muehlebach, A., 2003).
In sum, it is important to appreciate the link that law and culture have between one another. This is a link that is often forgotten when studying law; however, if one delves into the subject matter on a more academic level, it is clear to see how the two are a necessary component of one another. Law was formed to protect a specific set of culture and ideals. Culture has been preserved through the creation of law over the ages to protect a specific group or religious practice. Through making this connection, it is apparent to see how law and culture thrive off each other and protect one another. That being said, it is also fascinating to compare how the debate between law and culture has evolved over the ages to sometimes counter the fact that culture founds law or that law creates culture. Both are interchangeable when comparing a contrasting different cultures around the world.
Through the comparison of the Chinese, Arab, American, European, and Native American cultures around the world, it is incredible to see how the debate between law and culture switches from varying cultures and how each culture brings out a different aspect of the law that structures that corresponding culture. The best example of this can be seen with the Sharia Law in the Middle East and how it brings out the debate between church and state. Sharia Law shows a pivotal answer of how culture and law shape the construction of a society though combining religion within the law. This is a beautiful demonstration of how the debate between culture and law has been evolving for thousands of years. In the coming years, we will see this debate continue to prosper as new societal issues arise that are custom to the natural evolution of man, law, and culture.
References
Berman, P. (2009). The Enduring Connections Between Law and Culture: Reviewing Lawrence Rosen, Law as Culture, and Oscar Chase, Law and Culture and Ritual. GW Law Faculty Publications. Retrieved from: http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1087&context=faculty_publications
Mezey, N. (2001). Law as Culture. Yale Journal of Law & The Humanities, 13(1), 35-67.
Muehlebach, A. (2003). What Self in Self-Determination? Notes from the Frontiers of Transnational Indigenous Activism. Identities. Retrieved from: http://dx.doi.org/10.1080/10702890304329
Rosen, L. (2006). Law as Culture: An Invitation. Retrieved from: http://www.mcgeorge.edu/Documents/Conferences/Rosen_Excerpt_Law_As_Culture.pdf
Rusokla, T. (2002). Legal Orientalism. Michigan Law Review, 101(1), 179-234.
