Law and Cultural Identity
What are the epistemological links between culture and law? This paper aims to retrace their relation, based on the weberian argument that modernity and rationalization have removed jurisdiction from its basic, cultural justification.
ARENA Working Paper 14/1997 (html)
J. Peter Burgess
It has become common to perceive modernization as a process of rationalization in which technology and instrumentality are central values. According to this model the European nation-state is evaluated more and more according to scientific ideals; bureaucracy becoming synonymous with technocracy. According to Weber, the primary consequence of modernization process and its concurrent scientifization of the nation-state is the detachment of legal jurisdiction from its foundation. It is the source and nature of that absent foundation which is the object of the present paper. It argues that the absence of juridical foundation is in effect a detachment from the cultural roots of law. Post-Weberian legal theorists (Habermas, Luhmann, Teubner, Nonet, Selznick) problematize in radically different ways the notion of rationalization as scientification. It will be our approach to construct a homology between law and culture, aiming to rediscover the continuity between culture and law, in other words, the implicit presence of law in culture and vice versa. Law and culture, it will be argued, are inseparable, the one being the conceptual platform of the other.