Law as Culture

Abstract

The notion of culture is everywhere invoked and virtually nowhere explained. Culture can mean so many things: collective identity, nation, race, corporate policy, civilization, arts and letters, lifestyle, massproduced popular artifacts, ritual. Law, at first glance, appears easier to grasp if considered in opposition to culture - as the articulated rules and rights set forth in constitutions, statutes, judicial opinions, the formality of dispute resolution, and the foundation of social order. In most conceptions of culture, law is occasionally a component, but it is most often peripheral or irrelevant. Most visions of law include culture, if they include it at all, as the unavoidable social context of an otherwise legal question - the element of irrationality or the basis of policy conflicts. When law and culture are thought of together, they are conceptualized as distinct realms of action and only marginally related to one another. For example, we tend to think of playing baseball or going to a baseball game as cultural acts with no significant legal implications. We also assume that a lawsuit challenging baseball's exemption from antitrust laws is a legal act with few cultural implications. I think both of these assumptions are profoundly wrong, and that our understandings of the game and the lawsuit are impoverished when we fail to account for the ways in which the game is a product of law and the lawsuit a product of culture - how the meaning of each is bound up in the other, and in the complex entanglement of law and culture. If we are to make headway in understanding legal studies as cultural studies and legal practice as cultural practice, then a contingent clarification of the vague concept of culture is an important threshold question. The goal of this interdisciplinary project is to understand law not in relationship to culture, as if they were two discrete realms of action and discourse, but to make sense of law as culture and culture as law, and to begin to think about how to talk about and interpret law in cultural terms. This Essay participates in an increasingly lively discussion within law and sociolegal studies about what we ought to mean by culture and what culture can mean for law. These questions have gained urgency of late thanks to recent efforts to investigate the relationship of culture to law, and vice versa, and to make a place in legal studies for a cultural analysis of law. The engine of this investigation has been the popularity and usefulness of the interdisciplinary methods of cultural studies, which have been particularly keen to invade those disciplines, like law, which have traditionally insisted on their own formal integrity. Yet cultural studies suffers from the same definitional distress as culture itself: No one is exactly sure what it means to others and everyone is loath to offer their own working definitions.