Forum Summary: Law and Cultural Complexity
Meridian 180 hosted a conversation among our membership about the relationship between law and culture from March 5, 2011 to June 23, 2011. What follows is a summary of that discussion.
Chaired by Professor Ko Hasegawa of University of Hokkaido, Meridian 180’s June forum entitled “Law and Cultural Complexity” brought to gather legal experts from the United States, Germany, Japan, and China for an exchange of ideas between academic milieus across the Pacific. The discussion underscored how, to use the words of Cornell University’s Professor Annelise Riles, legal scholars on both sides of the Meridian 180 line – the International Date Line – “share a singular language of jurisprudence, political and cultural theory,” but “deploy this language from entirely different starting points, starting points so taken for granted that they remain largely unacknowledged even to ourselves, and hence we intervene to very different intellectual ends.” For instance, although they shared a vocabulary comprised of concepts such asculture, morality, values, technicality, and legal form, the diversity of meanings that these terms represented to various participants illustrated the extent to which such language can be shaped by different academic cultures, open to different legal applications, and organized by way of different conceptual taxonomies. Thus, as the shared terminology allowed the participants to traverse new academic milieus, it also became a source of confusion—one that drove discussants toward a fruitful ground of comparative analysis in which their sense of what is “obvious” in legal analysis was called into question by way of interaction across intellectual and cultural landscapes.
Professor Ko Hasegawa’s starting discussion of “the culturality and value orientation of law” highlighted the importance of the normative dimensions of legal practices and “substantive arguments” in deterring “self-isolation of the legal system.” He discussed the intertwined nature of culture (which includes values and morals) and law, and pointed out how more formalistic understandings of law could obscure proper comprehension of “cultural complexity” and the various norms that underlie legal practices. From this vantage point, he critiqued Professor Riles’ interest in legal technicality as “not fully successful in discerning the subtle relationship between law and culture,” and missing a “certain substantive value” that reflected law’s “normative underpinnings.”
Professor Ralf Michaels (Duke University) responded to Professor Hasegawa’s critique and his reflections on law and cultural complexity through the lens of Niklas Luhmann’s perspectives on how substantive arguments “avoid self-isolation of the legal system (the heaven of juridical concepts).” In contrast to Professor Hasegawa’s suspicions about the formalities of legal argument, Luhmann argued that such technicalities were “required by necessity to reach a decision and avoid immersion in the full complexity of facts.” Professor Michaels pointed out that Professor Riles’ concept of legal technicality did not deny cultural complexity, but was proposed as a response to it. In other words, even though Professor Hasegawa and Professor Riles shared the same academic language (e.g. the use of the term formality), their arguments unfolded in different directions because of divergences in technical meanings and propensities to deploy the terms in different ways. Following on this, Professor Yu Xingzhong (Chinese University of Hong Kong / Northwest University of Law and Politics) pointed out that Professor Hasegawa’s thesis suggested “that law and culture are two different open systems,” and that the connections were intricate and not static.
Professor Riles then responded that she shared the same analytical foundation with Professor Hasegawa, but that the starting and ending points differed. Thus, what he felt needed to be made explicit, she had accepted as a given. From her perspective, she had not neglected proper consideration of the interrelationship between law and culture, but rather took it as the unstated foundation of her discussion of legal technicality. This is owing to the different cultural contexts of the scholars. Professor Riles then stated that, as legal realists in late modern American law schools, “we accept as a given that 1) legal doctrine and technique are tools of political interests and that 2) legal doctrine and practice is constitutive of and constituted by social, political, cultural, normative, and economic forces.” Professor Riles principally assumed that Hasegawa’s sense of question was so widely accepted among her audience that she did not state it in her works. Instead, she had explored “what more we might have to say about law at this point,” as she sought to analyze what scholars in American law schools have too often dismissed: the technicalities of legal knowledge.
Meridian 180’s June forum was testament to the challenge of comparative analysis across different academic milieus. Sharing the same terminology but applying and interpreting it in different ways, participants struggled with the challenge of careful communication and clarifications to elucidate previously unstated assumptions.
* You can find the full text of Professor Hasegawa's article on: http://www.juris.hokudai.ac.jp/~hasegawa/HowCanLawHoldHope.pdf.