What place, if any, ought cultural considerations have when we blame and punish in the criminal law? Bringing together political and legal theorists Criminal Law and Cultural Diversity offers original and diverse discussions that go to the heart of both legal and political debates about multiculturalism, human agency, and responsibility.

A key question in comparative law is why different legal systems provide different legal solutions for the same problem. To answer this question, we use novel comparative evidence on how the conflict between the dispossessed original owner and the bona fide purchaser of a stolen good is resolved in different countries. This is the most primitive manifestation of a fundamental legal choice: the balance between the protection of the owner’s property rights and the enhancement of the buyer’s reliance on contracts. (...) We test four prominent theories: functional equivalence, legal origins, political economics and cultural economics. We find that a culture of self-reliance is the key determinant of comparative variation in this area of law. (shrink)

INTRODUCTION The following pages contain a theory of justice and a theory of law . Justice will be defined as the demand for a system of laws, ...

I FORMS AND PROBLEMS OF CULTURE INTEGRATION AND METHODS OF THEIR STUDY I. Culture Integration And Culture Unity — A Dark Problem Is every culture an ...

The dialectical connection of law and culture is the relevant subject of research in philosophy, theory, and sociology of law, first and foremost due to the fact that insufficient theoretical substantiation lawmaking activity of politicians currently generates serious issues. Those of one cultural-legal traditions are unable to understand their partners belonging to another legal culture. Any modern legal theory should take into account the definition of culture the backbone factor for modern civilization. The novelty this research consists (...) in examination of the fundamental aspects of “law-culture” system alongside on the analysis of views of Western researchers previously unfamiliar to the Russian science. The goal of this work lies in revealing the key aspects of dialectical connection of law and culture and their correlation in modern era. The philosophy of law features ambivalent interpretation of the phenomenon of law: 1) as one of the forms of collective consciousness – along with culture, morality, philosophy, science,or religion; 2) in broad view of culture as a synonym of civilization, law would manifests as the crucial element of culture that generates multiple realities of sociocultural life of the people, society and the state. The research of dialectical connection of law and culture developed in the modern era, may contribute to resolution of complex problems that emerge in the contradictory “law-culture” system, which is of vital importance for the existence of separate national communities, as well as for survival of all the entire humanity. (shrink)

This volume of new essays brings together leading philosophers, historians, legal scholars, social thinkers, and literary critics to examine the far-reaching ...

Liberal political theory acknowledges the interdependence of the wellbeing of individuals and the flourishing of the cultural groups to which they belong. Consequently, many liberal political philosophers have proposed policies and laws aimed at multicultural accommodation. That is, policies and laws aimed at assisting communities to preserve their cultural values and practices, and at allowing them greater autonomy and self-government. However, certain religious and cultural groups hold beliefs, values, and practices that are oppressive and discriminatory against some of their own (...) members. Accommodating such groups may contribute to the discrimination and oppression. This question of “minorities within minorities” poses a real dilemma for liberal political philosophy. In this Paper I focus on certain cases that fall under the “minorities within minorities” framework that raise particularly complicated theoretical considerations. These are the cases where the demands for equal treatment are raised not by the state or by outsiders, but by disadvantaged individuals and groups within a community, who base their claim for greater equality not on the superiority of liberal values over the values of their culture but rather on an alternative, competing, interpretation of the values of their culture. I suggest that strong normative considerations support the view that the liberal state should assist challenges by marginalized individuals within communities to reinterpret cultural values and traditions in ways more favorable to them. (shrink)

Islam and the Rule of Justice: Image and Reality in Muslim Law and Culture. By Lawrence Rosen. Chicago: University of Chicago Press, 2018. Pp. xi + 279. $105 ; $35.

Do our present circumstances allow us to defend a specific connection (that specific connection) between «legal rules», «moral claims» and «democratic principles» which we may say is granted by an unproblematic presupposition of universality or by an «acultural» experience of modernity? In order to discuss this question, this paper invokes the challenge-visée of a plausible reinvention of Law’s autonomous project (a reinvention which may be capable of critically re-thinking and re-experiencing Law’s constitutive cultural-civilizational originarium in a «limit-situation» such as our (...) own). The discussion is developed by recognising that the claim to universality is not only incompatible with a substantive conception of juridicalness as validity but also sustained with difficulty by a procedural representation of discourse and rationality (a representation which, against its own conclusion-claims, could also be said to be culturally and civilizationally bounded). Not forgetting some specific features of contemporary juridical pluralism—namely that which emerges from the counterpoint between semiotic groups or interpretative communities (and their differently assumed claims of intersemioticity concerning the signifier law)—this train of reflection diagnoses briefly a sequence of complementary main difficulties (as «obstacles» to recognising Law’s demand as an unmistakable cultural project), namely those arising from the formalistic normativistic inheritance (confounding legal autonomy with isolationism), from the challenges and seductions of practical holism (justifying a continuum in which Law’s project loses its sense and autonomy), and also from the familiar debate between exclusive and inclusive versions of positivism and non-positivism (a debate which establishes-consecrates an equivocal counterpoint between Law and Morality). (shrink)

The relationship of law and culture has long been a concern of legal anthropology and sociology of law. But it is recognised today as a central issue in many different kinds of juristic inquiries. All these recent invocations of the concept of culture indicate or imply problems at the boundaries of established thought about either the nature of law or the values that law is thought to express or reflect. The consequence is that legal theory must, it seems, (...) now systematically take account of the notion of culture. The present paper asks how this might best be done. I argue that a concept of culture, as such, is of limited utility for legal theory because the term “culture” embraces a too indefinite and disparate range of phenomena. But legal theory needs conceptual resources to consider at a general level the relations of law and culture. This paper suggests that these resources should include, above all, a rigorous distinguishing of different abstract types of community. Legal theory requires a sociologically‐informed concept of community. What is encompassed by the vague idea of culture is actually the content of different types of social relations of community and the networks (combinations) in which they exist. (shrink)

This article takes up Marilyn Strathern’s formulation of a law/culture ‘duplex’ – her term for the complementarity of anthropology and law as means to each other’s ends. She draws attention to the limitations of the duplex, and urges us to consider ethnography as (in part) a project of unwinding its entwinement. As a step toward that end, the article returns to classic texts by Emile Durkheim and Bronislaw Malinowski – texts that were foundational to the emergence of anthropology, and (...) to the establishment of law as an object of study for the social sciences. Re-read in light of Strathern’s insight, what has been widely taken as their relativism emerges instead as their defense of political community as a subject for ethnography, and (accordingly) the basis for a theoretical check on law conceived globally – within states or as colonial overrule. The article concludes with a discussion of the contemporary relevance of that position. (shrink)

This paper examines the French erudite scholar Théodore Godefroy's (1580-1649) service to Cardinal Richelieu as a commercial expert. Using manuscripts that reveal his reading, connections and intellectual methods, it shows how Godefroy used his connections in the Parisian lettered circles and a politicized group within the Republic of Letters to gather commercial information, and used the techniques of juridical scholarship to organize his collection. His papers suggest that historians must look beyond a narrow canon of "mercantilist" works to understand seventeenth (...) century debates about the governance of commerce, to a broader context of debates about law, history, and sovereignty. (shrink)

This volume is dedicated to an intriguing Platonic work, the Laws. Probably the last dialogue Plato wrote, the Laws represents the philosopher's most fully developed views on many crucial questions that he had raised in earlier works. Yet it remains a largely unread and underexplored dialogue. Abounding in unique and valuable references to dance and music, customs and norms, the Laws seems to suggest a comprehensive model of culture for the entire polis - something unparalleled in Plato. This exceptionally (...) rich discussion of cultural matters in the Laws requires the scrutiny of scholars whose expertise resides beyond the boundaries of pure philosophical inquiry. The volume offers contributions by fourteen scholars who work in the broader areas of literary, cultural and performance studies. (shrink)

This essay draws upon Gramsci’s understandings of law and of the philosophy of praxis to develop a critical analysis of international law in the constitution and potential revolutionary transformation of the contemporary global political economy. The analysis illustrates the analytical utility of Gramscian conceptions of historical bloc and hegemony in capturing the significance of international law as an effective historical force. It also extends these conceptions, theoretically, by arguing that the global political economy is undergoing a process of juridification in (...) which a commodified legal form provides the template for economic and political regulation. The commodity form theory of law is presented as the key to understanding the significance of international law under the culture of global capitalism. (shrink)

Advances in medicine in the latter half of the twentieth century have dramatically altered human bodies, expanding choices around what we do with them and how they connect to other bodies. Nowhere is this more so than in the area of reproductive technologies. Reproductive medicine and the laws surrounding it in the UK have reconfigured traditional boundaries surrounding parenthood and the family. Yet culture and regulation surrounding RTs have combined to try to ensure that while traditional boundaries may be (...) pushed, they are reconstructed in similar ways. This paper looks at the most recent RT to be permitted in the UK, mitochondria replacement therapy. Despite controversial media headlines surrounding the technique, MRT is in fact an example of how science and regulation seek to expand models of traditional relatedness in a way that doesn’t challenge the existing order. Yet, like other RTs, while attempts are made to ensure it doesn’t push traditional boundaries too far, fissures and inconsistencies appear in law and culture, which give interesting insights into how genetics, parentage and identity are being mediated in new but familiar ways. (shrink)

Cultural rights constitute one of the most exciting new frontiers of human rights research and practice. Cultural rights are also the ultimate law and humanities topic. These are good enough reasons for making cultural rights the main focus of a book. But there are other reasons, too. Cultural rights are both transformative and empowering rights. They enable people to aspire to a better future for themselves, their families, and the society in which they live, and they play a key role (...) in realizing all other human rights. Furthermore, they provide a much-needed discourse or common forum in which we can explore, negotiate, and come to new cross-cultural understandings. All of this is supremely important today, at a time when respect for cultural diversity is a key concern worldwide, and when migration and advances in technology are increasing the level of cultural exchange but also fostering cultural clashes and incompatibilities previously masked by distance. (shrink)

The concept of ‘geneticization’ has been introduced in the scholarly literature to describe the various interlocking and imperceptible mechanisms of interaction between medicine, genetics, society and culture. It is argued that Western culture currently is deeply involved in a process of geneticization. This process implies a redefinition of individuals in terms of DNA codes, a new language to describe and interpret human life and behavior in a genomic vocabulary of codes, blueprints, traits, dispositions, genetic mapping, and a gentechnological (...) approach to disease, health and the body. This article analyses the thesis of ‘geneticization’. Explaining the implications of the thesis, and discussing the critical refutations, it is argued that ‘geneticization’ primarily is a heuristic tool that can help to re-focus the moral debate on the implications of new genetic knowledge towards interpersonal relations, the power of medicine, the cultural context and social constraints, rather than emphasizing issues as personal autonomy and individual rights. (shrink)

From the time of British colonial settlement, innumerable taonga have been appropriated from the indigenous Māori population of Aotearoa/New Zealand, from cloaks, weapons, carvings and musical instruments to the practices and products of tā moko. This article focuses on the topic of cultural appropriation, homing in on a recent legal case, Whitmill v. Warner Bros., in which an artist sued Warner Bros. in a US court for pirating a ‘ Māori-inspired’ tattoo created for Mike Tyson, so as to tease out (...) the conflicts between intellectual property laws and norms on one hand, and international frameworks for human and cultural rights on the other. It examines the implications of the case for tā moko as an indigenous artistic tradition, and the tension between human/artistic and cultural rights, before discussing potential remedial strategies, drawing on the findings of the Wai 262 report into claims concerning New Zealand law and policy affecting Māori culture and identity. Theoretically, it employs Manuel DeLanda’s assemblage theory as a framework for analysis, the benefit of DeLanda’s work being that it provides a novel approach circumventing the usual ontological terms of intellectual property laws and norms, which tend towards a kind of methodological individualism or micro-reductionism. (shrink)

Religion, belief and culture should be recognized as potential sources of moral purpose and personal strength in healthcare, enhancing the welfare of both clinicians and patients amidst the experience of ill-health, healing, suffering and dying. Communication between doctors and patients and between healthcare staff should attend sensitively to the welfare benefits of religion, belief and culture. Doctors should respect personal religious and cultural commitments, taking account of their significance for treatment and care preferences. Good doctors understand their own (...) beliefs and those of others. They hold that patient welfare is best served by understanding the importance of religion, belief and culture to patients and colleagues. The sensitive navigation of differences between people's religions, beliefs and cultures is part of doctors' civic obligations and in the UK should follow the guidance of the General Medical Council and Department of Health. In particular, apparent conflict between clinical judgement or normal practices and a patient's culture, religion and belief should be considered carefully. Doctors' own religion or culture may play an important role in promoting adherence to this good practice. In all matters, doctors' conduct should be governed by the law and arrangements for conscientious objection that are in effect. (shrink)

When international relations scholars think about international law they either ignore culture or offer highly deterministic accounts of its role. For the majority of scholars, international law is a rational construction, an institutional solution to the problem of order in an anarchical system, a body of rules and practices that reflect the contending interests and capabilities of major states. Issues of culture barely rate a mention. For others, culture is the deep foundation of international law, the structuring (...) “mentality” that gives law its form and content. International law, from this perspective, is a Western cultural artifact, globalized through centuries of imperialism and hegemony. These contrasting views lead to different expectations about the future of international law in today's culturally diverse international order. For rationalists, law's fate will be determined by the shifting configuration of interests that accompany new functional challenges and great power transitions. For the more culturally attuned, there are two possibilities. One is that functional utility will replace culture as law's foundation. International law may well be a Western cultural artifact, but “rational buy-in” will sustain it in a multicultural world. The other, more pessimistic, expectation is that the rule of international law will be fundamentally undermined by cultural diversity, particularly as rising non-Western powers articulate and promote markedly different cultural norms and values. (shrink)

The separation of church and state disguised the coordination of two very different conceptions of liberty at work in Revolutionary America, one with a religious basis in radical Protestant thought and the other with a legal basis in the secular Enlightenment. The essay combines the disciplines of law, literature, and intellectual history to investigate these contrasting formulations and their changing relationship. Cross-cultural analysis of the language of protest in both England and America gives the investigation a crucial focus. It also (...) explains a larger movement from direct influence to refraction in Anglo-American relations. (shrink)

This essay argues that H. Richard Niebuhr's classic book, Christ and Culture, is best understood as a typology of moral theologies. Each of Niebuhr's five types may be regarded as a patterned resolution of four theological relations: reason and revelation, God and world, sin and goodness, and law and gospel. Many of his evaluative comments reflect his preference for what he calls a transformationist or conversionist pattern. However, it is not difficult to imagine evaluative comments on the several types, (...) including the transformationist one, made from the perspective of a different preferred resolution of the four theological relations. Moreover, Niebuhr's scheme remains useful for analyzing more recent texts in theological ethics, such as Gustavo Gutierrez's A Theology of Liberation. Thus, while the book is not without its flaws and while readers may wish to enter some emendations and revisions, Christ and Culture is still worth reading because the categories it presents for analyzing moral theologies remain unsurpassed in their richness, usefulness, and suggestiveness. (shrink)

This book addresses the 'legitimacy gap' created by the removal of religion as a source of legitimacy for the foundation of secular states, when many of the world's states are still profoundly religious but require procedural, rather than substantive, grounds for constitutional arrangements.

We propose a construct, the Trust Triangle, that highlights three primary mechanisms that provide ex post accountability for opportunistic behavior and motivate ex ante trust in economic relationships. The mechanisms are a society’s legal and regulatory framework, market-based discipline and reputational capital, and culture, including individual ethics and social norms. The Trust Triangle provides a framework to conceptualize the relationships between trust, corporate accountability, legal liability, reputation, and culture. We use the Trust Triangle to summarize recent developments in (...) the empirical finance literature that examine how trust is formed and how trust, or its absence, affects financial markets, firm performance, and the incidence of financial fraud. To date, most studies examine only one leg of the Trust Triangle in isolation. The evidence, however, indicates that all three legs of the Trust Triangle have first-order effects on a wide range of financial outcomes and that they are interrelated. Attempts to model trust and trustworthiness that do not incorporate all three aspects of the Trust Triangle will therefore miss essential aspects of the basic economic problem of how counterparties overcome the risks of moral hazard, asymmetric information, and opportunism to engage in mutually beneficial exchange and production activities. We focus especially on culture-related mechanisms, a recently developed area in empirical finance research that has potential to influence the more established research on laws and reputation. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Citizenship and Culture in Early Modern EuropePeter N. MillerCharlotte Wells, Law and Citizenship in Early Modern France (Baltimore: The Johns Hopkins University Press, 1995), xviii, 198p.Paula Findlen, Possessing Nature: Museums, Collecting, and Scientific Culture in Early Modern Italy (Berkeley, Los Angeles, and London: University of California Press, 1994), xviii, 449p.Steven Shapin, The Social History of Truth: Civility and Science in Seventeenth-Century England (Chicago and London: University of (...) Chicago Press, 1994), xxiv, 483p.Anne Goldgar, Impolite Learning: Conduct and Community in the Republic of Letters 1680–1775 (New Haven and London: Yale University Press, 1995), xv, 395p.Lawrence Klein, Shaftesbury and the Culture of Politeness: Moral Discourse and Cultural Politics in Early Eighteenth-Century England (Cambridge, U.K., 1994), xiii, 217p.Daniel Gordon, Citizens Without Sovereignty: Equality and Sociability in French Thought, 1670–1789 (Princeton: Princeton University Press, 1994), viii, 270p.Dena Goodman, The Republic of Letters: A Cultural History of the French Enlightenment (Ithaca and London: Cornell University Press, 1994), xiii, 338p.E. J. Hundert, The Enlightenment’s “Fable”: Bernard Mandeville and the Discovery of Society (Cambridge: Cambridge University Press, 1994), xii, 284p.The pre-modern political world was broken and remade in the two centuries that separate Montaigne from Jefferson. The long agony of the mixed constitution that began in the civil wars which raged in Iberia, France, the Low Countries, and England and seemed settled by the widespread adoption of the maxims of reason of state, revived at the end of the period, with revolution in Poland, Denmark, Sweden, Geneva, and, more famously, [End Page 725] British North America and France. The problem, classically, turned on the location of sovereignty, or supreme authority, in political systems designed to balance and diffuse rather than concentrate power. When budget deficits and fratricidal culture wars raised the cry of “necessity”—with the knowledge, of course, that necessity knew no law—estates and kings across Europe found themselves at daggers drawn. The claim that the ruler, who naturally was wholly committed to the common good, had therefore the ability to take emergency action was used both by those accustomed to rule and those newly attained to it by force. The pursuit of an “interest” that was identified with the nation’s effectively marginalized discussions of right and law while still serving an essentially constitutional, justificatory role in political debate. But if unchecked authority was necessary in order to meet the challenge of a world characterized by change and chance and thus had to reside somewhere, was there anything that made its exercise by one body more appropriate than another? This was the question that lay behind the late eighteenth-century repudiation of the reason of state “solution” to the problem of the mixed constitution. The answer, which clearly underpinned the establishment in fact of what had first been theorized already a century earlier, was that only consent could legitimate the exercise of sovereignty in time of necessity.1Representation, in one form or another, was the acknowledged solution to the problem formulated by Hobbes: “the name of Tyranny, signifieth nothing more, nor less, than the name of Sovereignty, be it in one, or many men, saving that they that use the former word are understood to be angry with them they call Tyrants.” But representation also acknowledged the reality behind the charged category of “citizenship”: most people in most places could not be said to live the life of the active citizen celebrated in Roman republican literature. Hence Hobbes’s attack on recourse to classical exempla in general, and the Libertas of Lucca in particular. The idea of civis as law-abiding subject was as radical a redrawing of the terms of debate as the identification of human nature with unsociability. Insofar as politics, classically, justified itself as the means for individual self-perfection, the practice of the ancient citizen could be conceived of as the practice of that best life speculated upon by philosophers. For the represented citizen, however, politics necessarily occupied a more subsidiary position. What, then, defined the best life to which he could aspire?There is no simple answer to this question, and the early modern ambivalence has persisted into our own time... (shrink)

The current literature review is part of a project-based study exploring the perceptions of university students, scholars, and policymakers in Bulgaria on the issue of academic plagiarism. The paper focuses on plagiarism prevention. The review explores the issue of plagiarism in light of the psychological motivations behind the conscious act of the misconduct, outlining possible directions for minimizing the misconduct in academia in the areas of psychology, law and education separately and in combination. The current literature review considers the misconduct (...) of plagiarism as a universal phenomenon closely linked to the heuristics of human nature. The paper delves into the heuristics of human nature motivating the misconduct from personal, cultural, legal, and educational psychology perspectives, drawing general (universal) and specific (for the Bulgarian context) implications regarding culture and educational and legal policy. Creating, regulating and preserving an empathic, trauma-healing and value-oriented organisational environment in academia emerges as a positive point of convergence and synergy where psychology meets education, culture and the law. (shrink)

There is no prepared script for social and cultural life. People work it out as they go along. Creativity and Cultural Improvisation casts fresh, anthropological eyes on the cultural sites of creativity that form part of our social matrix. The book explores the ways creative agency is attributed in the graphic and performing arts and in intellectual property law. It shows how the sources of creativity are embedded in social, political and religious institutions, examines the relation between creativity and the (...) perception and passage of time, and reviews the creativity and improvisational quality of anthropological scholarship itself. Individual essays examine how the concept of creativity has changed in the history of modern social theory, and question its applicability as a term of cross-cultural analysis. The contributors highlight the collaborative and political dimensions of creativity and thus challenge the idea that creativity arises only from individual talent and expression. (shrink)

Recent critics have called attention to the alienation of contemporary academics from broad currents of intellectual activity in public culture. The general complaint is that intellectuals are finding a professional home in institutions of higher learning, insulated from the concerns and interests of a wider reading audience. The demands of professional expertise do not encourage academics to work as public intellectuals or to take up social, literary, or political matters in imaginative and perspicuous ways. More problematic is the relative (...) absence of religion in the writings of those who aspire to work as public intellectuals. This essay reviews recent attempts by William Dean, Cornel West, Jean Bethke Elshtain, Stephen Carter, and Robin Lovin to remedy the problem of academic alienation and to address the place of religion in American life. (shrink)

In this article I analyse the extent to which there has been a shift in the cultural turn in legal scholarship and specifically from visual to what I call material jurisprudence, that is from visual to material ways of knowing law. I do so through an analysis of Desmond Manderson’s edited collection, Law and the Visual: Representations, Technologies, Critique, and Katherine Biber’s monograph, In Crime’s Archive: The Cultural Afterlife of Evidence. Inspired by the material turn in the arts and humanities (...) I apply a material lens as defined by historians of emotions working within this turn to these books. Using this lens, I analyse the extent to which the authors conceptualise and analyse their primary sources in material terms. In so doing it is my intention to encourage scholars of visual jurisprudence to consider the multisensorial nature of law by considering the material as a constitutive part or instead of the visual as has happened elsewhere in the arts, humanities and social sciences, as well as to do so with greater specificity and depth. (shrink)

Natural law has long been considered the traditional source of Roman Catholic canon law. However, new scholarship is critical of this approach as it portrays the Catholic Church as static, ahistorical, and insensitive to cultural change. In its attempt to stem the massive loss of effectiveness being experienced by canon law, the church has to reconsider its theory of legal foundation, especially its natural law theory. Church Law in Modernity analyses the criticism levelled at the church and puts forward solutions (...) for reconciling church law with modernity by revealing the historical and cultural authenticity of all law, and revising the processes of law making. In a modern church, there is no way of thinking of the law without the participation of the faithful in legislation. Judith Hahn therefore proposes a reformed legislative process for the church in the hope of reconciling the natural law origins of church law with a new, modern theology. (shrink)

Loose, unconnected, free-floating, mobile: this is the modern individual, at least in comparison with the immediate past.

When discussions of scientific method shift from natural sciences to social sciences, we tend to feel that we are turning from strict sciences to subject matters which may have achieved some measure of intellectual competence but which lack the rigor, objectivity and principles of organization found in mature science. This sense of a difference between the natural sciences and the social sciences is connected with questions of the meaning and rôle of laws. To the extent to which social and historical (...) events have not been reduced to laws or perhaps cannot be, the disciplines which study such events are considered immature or imperfect sciences. To the extent to which social sciences do not offer predictions, they are felt to have little application to the solution of actual and immediate problems. When a bridge has to be built over a chasm, the laws of the natural sciences can be brought to bear. But when a treaty is to be drawn, where, it is asked, are the social and historical laws which can be applied to the situation? (shrink)