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The Politics of Legal Cultures

Banakar, Reza LU (2008) In Retfærd: Nordisk juridisk tidsskrift 31(4). p.38-60
Abstract
Sociology and anthropology of law were partly developed from inception to empirically address the complexity of the relationship between law and society. Many of their insights into how law is socially constructed through the interaction between cultural, religious, economic and political factors remain incompatible with the aims and concerns of mainstream legal scholarship. Most social scientific approaches to the study of legal institutions and legal behaviour have revealed the plurality of forms of law, demonstrating that law can simultaneously manifest itself in different forms and at different levels of social reality. In contrast, various schools of legal positivism have conceptually separated law from morality, legality from... (More)
Sociology and anthropology of law were partly developed from inception to empirically address the complexity of the relationship between law and society. Many of their insights into how law is socially constructed through the interaction between cultural, religious, economic and political factors remain incompatible with the aims and concerns of mainstream legal scholarship. Most social scientific approaches to the study of legal institutions and legal behaviour have revealed the plurality of forms of law, demonstrating that law can simultaneously manifest itself in different forms and at different levels of social reality. In contrast, various schools of legal positivism have conceptually separated law from morality, legality from justice, and facts from norms, in order to create a normative basis for justifying the unity and autonomy of law. This paper starts by exploring the tension between Western and Islamic legal cultures of immigrant communities living in the west. It then goes on to argue that the use of such antinomies as facts and norms, or law and morality, which are employed by legal theory in order to conceptually organise itself, diverts our attention away from the fact that law, whether it is defined as the command of the sovereign or the inner order of associations, is not divided into two opposing or contradictory poles. Instead, it consists of countless fragments which are not necessarily related in a formal rational manner. (Less)
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author
publishing date
type
Contribution to journal
publication status
published
subject
keywords
immigration, modernization, rationality, gender, sharia law, pluralism, legal cultures, living law
in
Retfærd: Nordisk juridisk tidsskrift
volume
31
issue
4
pages
38 - 60
publisher
DJØF Publishing
ISSN
0105-1121
language
English
LU publication?
no
id
710be7e1-eb8c-4b43-88c3-32c619fe6599 (old id 3632366)
alternative location
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1540606
date added to LUP
2013-04-10 08:05:26
date last changed
2016-06-29 09:16:18
@article{710be7e1-eb8c-4b43-88c3-32c619fe6599,
  abstract     = {Sociology and anthropology of law were partly developed from inception to empirically address the complexity of the relationship between law and society. Many of their insights into how law is socially constructed through the interaction between cultural, religious, economic and political factors remain incompatible with the aims and concerns of mainstream legal scholarship. Most social scientific approaches to the study of legal institutions and legal behaviour have revealed the plurality of forms of law, demonstrating that law can simultaneously manifest itself in different forms and at different levels of social reality. In contrast, various schools of legal positivism have conceptually separated law from morality, legality from justice, and facts from norms, in order to create a normative basis for justifying the unity and autonomy of law. This paper starts by exploring the tension between Western and Islamic legal cultures of immigrant communities living in the west. It then goes on to argue that the use of such antinomies as facts and norms, or law and morality, which are employed by legal theory in order to conceptually organise itself, diverts our attention away from the fact that law, whether it is defined as the command of the sovereign or the inner order of associations, is not divided into two opposing or contradictory poles. Instead, it consists of countless fragments which are not necessarily related in a formal rational manner.},
  author       = {Banakar, Reza},
  issn         = {0105-1121},
  keyword      = {immigration,modernization,rationality,gender,sharia law,pluralism,legal cultures,living law},
  language     = {eng},
  number       = {4},
  pages        = {38--60},
  publisher    = {DJØF Publishing},
  series       = {Retfærd: Nordisk juridisk tidsskrift},
  title        = {The Politics of Legal Cultures},
  volume       = {31},
  year         = {2008},
}