Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is president of the Association for the Study of Law, Culture, and the Humanities and past president of the Law & Society Association. He has written and edited many books, including When the State Kills: Capital Punishment and the American Condition.

Jonathan Simon is Professor of Law at the University of Miami School of Law. He is the author of Poor Discipline: Parole and the Social Control of the Underclass, 1890–1990 and coeditor of Embracing Risk: The Changing Culture of Insurance and Responsibility.

Cultural Analysis, Cultural-CL

By Austin Sarat

Duke University Press

Copyright © 2003 Austin Sarat
All right reserved.
ISBN: 9780822331070

Chapter One

Law as Culture Naomi Mezey

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, mass-produced 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 that both of these assumptions are profoundly wrong. 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 consideration. 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.

Another motivation for the academic pairing of law and culture emerges from the fact that political “culture wars” are being waged ever more explicitly on legal terrain. Congress, for instance, is increasingly confident that it can change culture through legislative initiative. Take, for example, Congress’s reaction to the shootings at Columbine High School and youth violence more generally. The rhetoric of the mostly partisan debate, as well as the substance of the proposed legislation, focused more on regulating youth culture (in the form of movies, video games, and overly secularized public schools) than on regulating guns. Like Congress, the Supreme Court is increasingly divided over whether the issues before them are issues of law or culture. Congress is right that legislation can change culture, but it is right for all the wrong reasons. It is more likely that culture will be influenced by law in ways never intended or anticipated by Congress. This common slippage between the purposes and meanings that appear to animate a particular legal rule (or even the absence of a rule) and the actual effects of a rule as it circulates through cultural practice is the object of inquiry in a cultural interpretation of law. Slippage, a concept on which I will elaborate later, identifies the dislocation between the production of legal meaning and its reception and rearticulation, all of which are mutually informed and always cultural. This dislocation in turn locates the inevitable intersection of law and culture.

This essay is an attempt to theorize the relationship of law to culture and culture to law beyond the intuitive, commonplace sense that law partakes of culture-by reflecting it as well as by reacting against it-and that culture refracts law. It proposes a theory of law as culture that, in detailing the mutually constitutive nature of the relationship, distinguishes itself from the way law and culture have been conceived of by realist and critical legal scholars, as well as by social norms writers. The essay concludes by speculating about one possible method by which this theorizing might be analytically employed in a cultural interpretation of law.

As an overture toward the goal of understanding law as culture, I offer in the first part of the essay what I hope is a clarification and rehabilitation of the concept of culture. After canvassing some of the best that has been thought and said about the concept, I offer a provisional way to think about culture as a set of shared signifying practices that are always in the making and always up for grabs.

The second part of the essay elaborates on what law as culture and culture as law can mean by showing the ways in which law is one of the signifying practices that constitute culture and vice versa. I give examples of three different ways in which we might understand law as culture: one that borrows from the realist and critical approaches by emphasizing the power of law over culture; another that shares some sympathies with a social norms approach by emphasizing the power of culture over law; and a third that envisions an unstable synthesis between the two, formed by a continuous recycling and rearticulation of legal and cultural meanings.

In the third part of the essay, I speculate about where this theory might lead by suggesting a very provisional structure for thinking about the work we ask culture to do, particularly with respect to law. What I propose is an investigation into the movement and moments of collision between the dependent discourses of law and culture. I suggest an approach that borrows from the ethnographic method: employing thick description in our accounts of law and culture in an effort to locate the slippage and elision between the two, directing us not so much to a singular explanation as to neglected questions and revealing juxtapositions. This sketch of a method does not aspire to the anthropological goal of making the foreign familiar; instead, it hopes to make the familiar foreign by giving further content to the proposition that law is culture. To this end, a cultural study of law envisions a robust interpretation of how conventionally understood legal and cultural meanings inform each other such that they are no longer intelligible as strictly legal or cultural. In a sense, the method presupposes the object of inquiry. As Sarat and Kearns aptly put it, to focus “on the production, interpretation, consumption, and circulation of legal meaning suggests that law is inseparable from the interests, goals, and understandings that deeply shape or comprise social life.”

What We Talk about When We Talk about Culture

Culture is a deeply compromised idea I cannot yet do without.-James Clifford, The Predicament of Culture

There are many ways to talk about culture and many ways to put it to work. The contemporary work that culture is asked to do is most often explanatory; it is the product of a transformation in the concept of culture from “something to be described, interpreted, even perhaps explained … [to] a source of explanation in itself.” Adam Gopnik, an insightful culture critic for the New Yorker, made this point by reflecting on the pervasive use of the word “culture” in all the attempted explanations of the shootings at Columbine High School, and the ultimate misuse and even meaninglessness of the term in its constant invocations:

But most often by “culture” we pop sociologists don’t even mean violence in movies and TV and video games. We just mean-well, nothing, really. It’s just decor. The only difference between saying that America is a violent country and saying that it has a “culture of violence” is that the second has a comforting, classy tone, and gives the illusion of depth. By appending the word “culture” to an observation, you somehow promote it from a description to an explanation…. Every age has a term to explain things that resist explanation. The Elizabethans had Fate; the Victorians had History; we have Culture.

Of course, he is right, and he is not right. Gopnik is right in the sense that the word has become a kind of political expedient that we use to mean many different things and sometimes to mean nothing at all, and that this practice tends to erode the usefulness of the word. However, this problem may have as much to do with our “culture of confusion” as it does with our ubiquitous use of the word itself. Gopnik is wrong in the sense that the way he thinks we use culture is not the only way we might use it. As Gopnik suggests, when culture is deployed as political device, it is effective precisely because it has no analytical content, and it is popular because it sounds as if it did. But it only sounds as if it had analytic bite because the concept of culture belongs to a rich and contested intellectual history in which it has functioned frequently and effectively as an analytical device. It is in this sense that I use the word. Culture as analytical device has not been drained of all interpretive and explanatory power simply because as a concept it resists explanation, or because we hope that its invocation alone explains more than it does. Culture is one way of explaining things. When we make the effort to clarify what we mean by the term and are cautious about the sort of work we ask it to do, the concept may still prove to have teeth.

To talk about law and culture, or to suppose that law is culture, is to presume that we understand the concepts that provide the basis of our inquiry. At their most complex, these concepts undoubtedly resist the closure of definition. Culture especially is a “deeply compromised” concept. Among anthropologists, there has been much hand-wringing, some of it very useful, about what it means to write culture. Rosemary Coombe insists that “[t]he relationship between law and culture should not be defined” because both law and culture developed conceptually in the eighteenth and nineteenth centuries into categories that were understood as organic and discrete and were used to naturalize and legitimate European colonial power. “An exploration of the nexus between law and culture will not be fruitful,” she contends, “unless it can transcend and transform its initial categories.” I would argue that our understandings and uses of both law and culture are plastic-they cannot help but change and evolve-and that their evolution is mutually informed. Admittedly, while they have moved well beyond their initial categories, they also cannot help but bear that influence. “[E]ven if they are expressed in novel idioms, discourses on culture are not freely invented; they refer back to particular intellectual traditions that have persisted for generations…. New formulations can be set in a long genealogy, even if they are related to the needs of the moment.” I now turn to a brief summary of that genealogy.

Raymond Williams, that spectacular genealogist of culture, called “culture” “one of the two or three most complicated words in the English language.” Williams chronicles the meanings of the word beginning in the fifteenth century, following its association in English with the process of cultivation, first in husbandry and then in manners, to the German use of the word Kultur to mean civilization. Williams locates an important innovation in the understanding of culture in the late eighteenth century, when it is first used in the plural, to mean “the specific and variable cultures of different nations and periods, but also the specific and variable cultures of social and economic groups within a nation.” This important move marks a rejection of the idea of culture as the universal progress of humanity and a shift toward something like “a particular way of life.” This conception of culture stands in contrast to the still popular use of the term to mean intellectual and artistic production, “the best that has been thought and known in the world,” in Matthew Arnold’s words. Finally, Williams distinguishes between culture as primarily material production, which he associates with archaeology and cultural anthropology, and culture as “signifying or symbolic systems,” which he associates with history and cultural studies. It is mainly in this latter sense, inspired by both cultural studies and sociology, that I use the term “culture.”

Cultural studies has tended to favor, among the various definitions of culture that Williams has sketched elsewhere, some form of what he calls the social definition, “in which culture is a description of a particular way of life, which expresses certain meanings and values not only in art and learning but also in institutions and ordinary behavior. The analysis of culture, from such a definition, is the clarification of the meanings and values implicit and explicit in a particular way of life, a particular culture.”

Williams himself was interested in reconciling the different views of culture that he canvassed, and he cautioned against accepting any singular approach to culture because the “variations of meaning” capture the complexity of the term. As Williams realized, the concept of culture will always bear the imprint of the interests and ideologies that influenced its development. And this may not be such a bad thing; it certainly does not justify abandoning the term or adopting the convolutions of theoretical shorthand in order to speak of it only obliquely. It means that as we venture to name and give shape, no matter how provisionally, to our subjects, we must remain attentive to the ways in which they defy us, meaning at once more and less than we may wish.

Drawing from Williams’s rather generalized social definition of culture, and emphasizing the importance of signifying systems that have been the focus of cultural studies, critical anthropology, and sociology, I will provisionally call culture any set of shared, signifying practices-practices by which meaning is produced, performed, contested, or transformed. As the sociologist William Sewell has put it, culture is both a semiotic system with its own logic and coherence and the practices that reproduce and contest that system-practices that are contradictory and always in flux. Bearing in mind Williams’s claim that the emergence of the modern concept of culture is “a process, not a conclusion,” I want to emphasize the process of cultural practice as one of making, reproducing, and contesting meaning.

I want to distinguish here between a couple of different ways in which this version of culture might be read. Culture can be conceived as the almost unconscious meaning-systems that people inhabit and enact without choice. It can also be thought of as the more self-conscious deployment of certain symbols whose meaning becomes temporarily salient. It is at this slightly more conscious level of cultural practice that meanings are contested. Stuart Hall identifies a similar version of this distinction in cultural studies, which has used culture to mean “both the meanings and values which arise amongst distinctive social groups and classes … through which they ‘handle’ and respond to the conditions of existence; and as the lived traditions and practices through which those ‘understandings’ are expressed and in which they are embodied.” Culture as any set of shared, signifying practices can refer to both of these meanings.

The contradictions within and contestations over cultural meanings cannot be overemphasized. That contradictions exist within and between cultures is a point that can be missed by using terms-like “structure,” “system,” or “shared meaning”-that suggest an elegant coherence. Renato Rosaldo provides an important corrective when he argues for attention to the “internal inconsistencies, conflicts and contradictions” of cultures.

Continues…
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