Mautner on Law and Culture

Menachem Mautner (Tel Aviv University) has posted an interesting survey of contemporary approaches to law and culture.  He summarizes the three schools of thought: (1) culture constitutes law, a view that goes back to Savigny and the German historical school; (2) law constitutes culture, a view associated with Clifford Geertz; and (3) law as a distinct cultural system.  To my mind, the best view is one that combines these approaches.  One could hardly deny that law influences social behavior – otherwise, why bother? – but it seems obvious that culture affects law as well.  As Herodotus observed long ago, nations have different histories, economies, religions, and ways of doing things.  Their laws differ, too.

How is all this relevant to law and religion?  Increasingly, law and religion scholarship is taking a comparative turn, exploring the ways different legal systems approach establishment and free exercise issues.    Scholars who do comparative work often find themselves wondering how a foreign legal system that expresses identical values could adopt a solution that differs so much from the scholars’ own.  The answer is often complicated, but most of the time it turns on the other country’s traditions and social usages – its culture.  Understanding how culture and law relate is thus extremely important for comparative law and religion studies, and Mautner’s essay is a good place to start. – MLM

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