Legal Culture

by

Marie Houllemare

• LAST REVIEWED: 27 July 2016
• LAST MODIFIED: 27 July 2016
• DOI: 10.1093/obo/9780199730414-0274

Introduction

Legal culture is a concept first used by US legal historians in the mid-1980s. It appeared under the influence of the Critical Legal Studies movement, which outlined both the indeterminacy of law and its role in social change. Surprisingly, this concept has no equivalent in other legal historiographies. For instance, its French translation—culture juridique—only relates to the theoretical knowledge of professional lawyers. However, other historical traditions in Europe and Africa historicized the law in social context earlier, mostly under the influence of the cultural anthropology promoted by Clifford Geertz and others. Brazilian historians had long followed the fundamental work of Gilberto Freyre. Building on these various traditions, legal culture can be defined as a conception of justice and an understanding of legal institutions by individuals or groups that influence their actions. The study of legal culture is based on a wide array of sources, such as court records or notarial deeds, that give insight into a number of social practices legally shaped. Social actors elaborate legal strategies according to their legal culture; they engage in legal actions if they believe they can benefit, which further implies an awareness of an individual’s legal possibilities of action. Applied to early modern Atlantic history since the mid-1990s, this concept helps to explain the building of unfair legal systems based on slavery during the colonial era. Not only seen as an instrument for imposing colonial rule, it also explores the legitimation of social hierarchy by dominant groups or polities. It also helps to explain its acceptance by some actors placed in a subaltern position, as well as their resistance to it. People contest a social or political order when they believe they are entitled to a benefit, e.g., they sue to claim and secure their rights. Study of legal culture, rather than law, therefore gives insight into situations when non-elite individuals engage in legal actions to change their personal situation, e.g., obtaining official manumission. Finally, by considering courts as arenas of discussion of general values, it also gives historians a method of analysis for legal actions; single cases are episodes in general fights over principles that can eventually lead to collective changes, such as slavery abolition. Therefore, even if a clear definition of a legal culture (a consciousness? an awareness? a mentality?) is still under debate among scholars, this concept has already proven fruitful to uncover the complexities and contradictions of Atlantic early modern societies that were pluralistic at their core by looking at interactions between legal cultures. The choice of legal arenas (i.e., jurisdictional concurrence) and the repetition of similar legal conflicts make up a major line of inquiry in the construction of an interimperial order in the Atlantic during 17th and 18th centuries. In fact, it would be more effective to use the plural “legal cultures” as this concept is used at its best in narratives of conflicts and clashes between competing sets of values that can lead to normative and social changes. Because this field is too large and scattered to cover everything, this article is limited to the variety of definitions of legal culture in Atlantic social history.

General Overviews

General overviews mostly deal with the history of law, not legal culture. Still, these narratives are important as a starting point, especially as the concept of legal culture has been developed from, and in contrast with, law history, mostly in North American historiography. If legal culture is not law but the way in which actors refer to and use law, both interact with each other continually. This tension makes the field so vast and complex that, as of the early 21st century, the only real introductions to it are Hadden and Brophy 2013, a general and very useful introduction for students, and Katz 2009, an encyclopedia. Early modern legal history has been blooming since Katz 1984; however, many general overviews are written from a national or imperial point of view, but none adopts an Atlantic perspective. The first synthesis about how law shapes people’s life and how they use it is Hoffer 1998. Tomlins and Mann 2001 was a major milestone, opening many new directions of study. Grossberg and Tomlins 2008 is precise and has extensive bibliographical essays. Benton 2002 is crucial in opening the field to questions of connections and conflicts of colonial cultures. Breen 2011 reviews the historiography on early modern France and Europe where the social dimension of legal culture is less problematic to historians.

• Benton, Lauren. Law and Colonial Cultures: Legal Regimes in World History, 1400–1900. New York: Cambridge University Press, 2002.

  A crucial work showing the importance of complex legal regimes in colonial culture by looking at various case studies taken from the Atlantic, Indian, and Pacific Ocean areas. Colonial empires are characterized by plural legal orders that are also part of a “global legal regime.”

• Breen, Michael. “Law, Society, and the State in Early Modern France.” Journal of Modern History 83 (June 2011): 346–386.

  DOI: 10.1086/659209

  A review article about Europe as well as France. Stresses the contingency of law, the object of negotiations and contestations, but is mostly concerned with the fall of litigation between 1600 and 1750. Considers justice in terms of social collaboration contributing to State formation.

• Grossberg, Michael, and Christopher Tomlins, eds. The Cambridge History of Law in America. Vol. 1, Early America (1580–1815). Cambridge, UK: Cambridge University Press, 2008.

  For scholars and lawyers, an up-to-date (as of 2008) collection of essays dealing with all the major issues of recent law history. Devoted to the United States, with a few articles trying to make comparisons with other countries’ legal culture. Each article has an extensive bibliographical essay.

• Hadden, Sally E., and Alfred L. Brophy, eds. A Companion to American Legal History. Chichester, UK: Wiley-Blackwell, 2013.

  An up-to-date (as of 2013) general guidance on legal history that is mostly concerned with North America, designed for students, divided in four parts: chronological overviews, individual and groups, subject areas, and legal thought. All essays have extensive bibliographies and clear definitions.

• Hoffer, Peter Charles. Law and People in Colonial America. Rev. ed. Baltimore and London: Johns Hopkins University Press, 1998.

  A useful and clear (except for epigrammatic chapter titles) synthesis about the legal culture of early modern America, with a rich bibliographical essay.

• Katz, Stanley N. “The Problem of a Colonial Legal History.” In Colonial British America: Essays in the New History of the Early Modern Era. Edited by Jack P. Greene and J. R. Pole, 457–490. Baltimore: Johns Hopkins University Press, 1984.

  An overview of legal historiography since the end of the 19th century that questions the American autonomy from English law. Also discusses the writing of a “socio-legal history” that takes into account the colonial period, hence opening the path to many studies in the 1980s and early 1990s.

• Katz, Stanley N., ed. The Oxford International Encyclopedia of Legal History. 6 vols. New York: Oxford University Press, 2009.

  A broad overview covering the cultural and social aspects of laws. A very useful tool, with a thematic index and a selected bibliography for each article.

• Tomlins, Christopher L., and Bruce H. Mann, eds. The Many Legalities of Early America. Chapel Hill, NC, and London: University of North Carolina Press, 2001.

  A major collective study showing how the practical implications of law came to be studied by historians as “a central actor in processes of colonization” (p. 9), mostly in the British-American Atlantic. Prefers the word “legalities” to legal culture in order to characterize legal dispositions and actions of individuals and their social dimension.