Comparing Legal Cultures This volume is dedicated to the incomparable Mrs Isla Dow Comparing Legal Cultures Edited by DAVID NELKEN Distinguished Professor of Sociology, University of Macerata, Italy and Distinguished Research Professor of Law, University of Wales at Cardiff ~l Routledge ~ ~ Taylor & Francis Group LONDON AND NEW YORK First published 1997 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OXI4 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint o(the Taylor & Francis Group, an in(orma business Copyright © 1997 David Nelken All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. ISBN 9781855218987 (pbk) British Library Cataloguing in Publication Data Comparing legal cultures. - (Socio-Iegal studies) I.Sociological jurisprudence 2.Culture and law 3.Sociological jurisprudence - Congresses 4.Culture and law - Congresses I.Nelken, David 340.1'15 Library of Congress Cataloging-in-Publication Data Comparing legal cultures / edited by David Nelken. p. cm. "Socio-Iegal studies series." ISBN 978-1-85521-718-8 l. Culture and law. I. Nelken, David. K487.C8C66 1996 340' .115-dc20 96-43132 ClP Transfered to Digital Printing in 2010 Contents List of Contributors; Acknowledgement Vll Comparing Legal Cultures: An Introduction David Nelken PART I INVOKING LEGAL CULTURE: DEBATES AND DISSENTS 1 The Concept of Legal Culture 13 Roger Cotterrell 2 The Concept of Legal Culture: A Reply 33 Lawrence M. Friedman 3 Civil Litigation Rates as Indicators for Legal Cultures 41 Erhard Blankenburg 4 Puzzling Out Legal Culture: A Comment on Blankenburg 69 David Nelken 5 Comparative Criminal Law for Criminologists: Comparing for What Purpose? 93 Malcolm M. Feeley 6 Sociological Uses of the Concept of Legal Culture 105 Carlo Pennisi 7 Comparing Legal Cultures in the Quest for Law's Identity 119 Michael King v vi Contents 8 Gender and Nature in Comparative Legal Cultures 135 Hanne Petersen PART II DISCLOSING LEGAL CULTURE: THE PRODUCTION OF DIFFERENCE 9 An Entrepreneurial Conception of the Law? The American Model through Italian Eyes 157 Maria Rosaria Ferrarese 10 Prosecution in Two Civil Law Countries: France and Italy 183 Carlo Guarnieri 11 The Enigma of Japan as a Testing Ground for Cross-Cultural Criminological Studies 195 Setsuo Miyazawa 12 Patients' Rights, Citizens' Movements and Japanese Legal Culture 215 Eric A. Feldman 13 Remembering and Forgetting: The Birth of Modern Copyright Law 237 Brad Sherman Index 267 List of Contributors Erhard Blankenburg is Professor of Law at the University of Amsterdam, Holland. Roger Cotterrell is Professor of Legal Theory at Queen Mary Westfield College, University of London, UK. Malcolm M. Feeley is Professor of Law at the University of California at Berkeley, USA. Eric A. Feldman is a Research Fellow at Yale University, USA. Maria Rosaria Ferrarese is Professor of Sociology of Law at the Univer- sity of Trento, Italy. Lawrence M. Friedman is Marion Rice Kirkwood Professor of Law at Stanford University, California, USA. Carlo Guarnieri is Professor of Comparative Judicial Systems at the Uni- versity of Bologna, Italy. Michael King is Professor of Law at BruneI University, UK. Setsuo Miyazawa is Professor of Law at the University of Kobe, Japan. David Nelken is Distinguished Professor of Sociology at Macerata Univer- sity, Italy and Distinguished Research Professor of Law at the University of Wales at Cardiff, UK. Carlo Pennisi is Professor of Sociology of Law at the University of Catania, Italy. vii Vlll Contributors Hanne Petersen is Professor of Law at the University of Copenhagen, Denmark. Brad Sherman is Professor of Law at Griffiths University, Brisbane, Aus- tralia. Acknowledgement The Law and Society Review is thanked for its permission to reproduce that part of Chapter 3 which appeared in a revised version in 1994. Comparing Legal Cultures: An Introduction David N elken Given the limited progress which has been made in comparative sociology of law since the writings of Max Weber, little justification is needed for seeking to compare and contrast legal institutions and processes in different societies and cultures. But the task of understanding the 'other' - in a world of ever-increasing contacts and mutual influences - is much more demand- ing than merely juxtaposing descriptions of the operations of law or atti- tudes to law in different countries. The contributions in this volume were first presented at a workshop on 'Comparing Legal Cultures' in Macerata University in Italy on 18-20 May 1994, organized by the Department of Social Change, Legal Institutions and Communication (under the auspices of the ISAJRCSL).l They discuss central features of law in countries as different (or as similar) as Britain, France, Germany, Holland, Italy, Japan and the USA. But their special concern is with the theoretical point of such exercises: the aim of this collection is to consider the possibilities and advantages of using comparative work so as to clarify the meaning and character of legal culture. The attempt to use a comparative perspective to grasp legal culture re- quires the ability to transcend competing approaches and methodologies which threaten otherwise to oversimplify what is at stake (Nelken, 1995). Some of these alternatives are false dichotomies insofar as they are rarely found in the pure form: this is certainly true for the opposed dangers of ethnocentrism and relativism and, to a large extent, also applies to the choice whether to aim at useful as opposed to strictly scientific types of comparative work. Other dilemmas are more real. What is culture? Should we concentrate on the world system, on national legal cultures or on specific institutions? Should we take culture to be the set of behaviours and ideas of a given population or embrace more post-modern accounts of culture as a constructed flow of images?2 What about legal culture? Are we interested in