Tags
IJ, GJ, GED, ID, PSc
Admission requirements
None.
Course description
This course explores the relation between law and culture – a topic that through globalisation, a perceived ‘clash of civilizations’, and the problems of increasingly multicultural societies has become quite prominent. The course will start with a discussion of different definitions of law and culture, before turning to the question of how modern law deals with cultural difference. This includes examining cultural defences in criminal law, how judges understand litigants from their own cultural frame of reference, the recognition of indigenous rights, and the relation between human rights and culture. An important topic for discussion concerns the argument that human rights are a cultural construction and therefore cannot have universal validity, a point of view officially taken by the American Association of Anthropologists when the Universal Declaration of Human Rights was adopted in 1948 and increasingly relevant today.
The second part of the course approaches law as a cultural phenomenon. A first question for discussion is whether all human societies have law or that law is something typical of modern states. We will look at a debate on the concept of ‘legal pluralism’ by Brian Tamanaha and Franz von Benda-Beckmann.
Next, we will look at the prominent idea that law is a ‘mirror’ of society and consists of a ‘codification’ of cultural norms and values, where others by contrast argue that law is a powerful instrument to change culture. Or is law an instrument serving other goals, such as protecting the interests of elites? This includes a discussion of the famous argument by the British marxist historian E.P. Thompson, who shocked some of his fellow-marxist colleagues by arguing that the rule of law holds universal value, even if the law is used as an instrument of oppression against the lower classes.
Finally, we will look at the concept of legal culture, referring to the ideas people in a particular society have about law and how they use it. Legal culture may be a helpful concept in explaining for instance why English and American labour law have developed so differently, but also how Islamic law plays quite different roles in the French and the Indonesian legal system. From this exploration we will evaluate the usefulness of this concept and whether it is not too ‘blunt’ an instrument to assess legal systems and how they work.
The course combines legal with sociological/anthropological perspectives and uses a comparative approach, looking at topics across different states and societies. It will use ‘real life’ cases to clarify the theoretical issues raised, including many taken from developing countries.
Weekly overview
Week 1
Class 1.1: Introduction
Assignment of topics for reaction papers & presentations
Class 1.2: The Cultural Defence
Week 2
Class 2.1: Multiculturality in Civil Law
Class 2.2: Universal Validity of Human Rights?
Week 3
Class 3.1: Religious Law
Class 3.2: The Rule of Law
Week 4
Class 4.1: Legal Recognition of Culture
Class 4.2: Legal Pluralism
Week 5
Class 5.1: Obstructing Social Change
Class 5.2: Promoting Social Change
Week 6
Class 6.1: Law as a Reflection of Culture
Class 6.2: Culture or Structure?
Week 7
Class 7.1: Dispute Settlement 1
Class 7.2: Dispute Settlement 2
Deadline for Submitting Final Essay
Week 8
Written examination: time and place to be announced
Learning objectives
The course objectives are the following:
to gain an understanding of different concepts of law and culture and how they relate;
to acquire knowledge of how modern legal systems deal with cultural issues and to understand what the pros and cons of various such approaches are;
to get an insight into some basic skills of legal reasoning and to learn how to apply them;
to gain an understanding of the different ways in which law can influence society and the other way round.
Mode of instruction
The course uses a variety of teaching methods, including lecturing, student presentations, case resolving, class discussion and more ‘ formal’ debate. For each class the specific assignments and questions for preparation will be announced on Blackboard.
Assessment
Group presentations
15%
Weeks 1-7
In-class participation (including debates)
15%
Weeks 1-7
Three short reaction papers to week’s readings
10%
Accepted until the day readings are discussed in class
Final essay
25%
Week 7, subject to be determined week 5
Final written examination
35%
Week 8
Compulsory textbook
The literature for each seminar meeting will be placed on Blackboard, either a PDF-version or a reference to where it can be downloaded.
Contact information
Dr. Adriaan Bedner: a.w.bedner@law.leidenuniv.nl