Comparative legal cultures? Renewal by transforming into a genuine discipline

Varga, Csaba (2007) Comparative legal cultures? Renewal by transforming into a genuine discipline. Acta Juridica Hungarica, 48 (2). pp. 95-113. ISSN 1216-2574

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Abstract

‘Comparative law’ was born to challenge national self-centredness at the turn of the 19th to 20th centuries, without transcending—notwithstanding its admission of social and cultural-historical approaches in the study of law—the perspectives of rule-positivism. ‘Comparative legal cultures’ attempts at explaining the prevailing cultural and traditional diversity that has generated, among others, western law with its modern formalism and the alternative ways of reaching social order in other cultures. By its focus upon the underlying culture and, thereby, also upon the hermeneutic understanding of legal phenomena, the latter is expected to offer growingly adequate responses to timely questions such as the universalisability of law and human rights, the convergence of the continental Civil Law and the British Common Law, or the development and future of the legal set-up in the Central and Eastern European region.The interest of the comparative study of legal cultures is thus one in the history of ideas, dedicated to human problem-solving as the cultural response of people to external challenges. For the description of living complexes in terms of mere rules can result at most in ‘thin description’ with the exclusion of ‘thick description’, the more so as rules (just as concepts) are only the consequences of a kind of possible representation, therefore, relying exclusively upon them may contribute to dissolving even prevailing interrelations, atomising organic components as fragmented into detached elements. Or, institutional thinking not-withstanding, not even the subject’s formalism can serve as a ground for restricting human completeness and integrity, cultural diversity, as well as responsibility to be taken for these.

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