Legal Culture

Author:Lawrence M. Friedman

Page 1576

The expression "legal culture" refers to opinions, attitudes, values, and expectations with regard to law and legal institutions. Every man and woman in society has at least some opinions on this subject?about judges, courts, the Supreme Court, or lawyers?but the expression, as the word "culture" implies, refers not so much to individuals as to generalizations about the opinions and values of members of some distinct group, class, category, or jurisdiction. One can speak about the legal culture of men as opposed to women, blacks as opposed to whites, or of salespeople, teachers, drug addicts, or people who live on farms. It may also be possible to make statistical generalizations about particular countries, so that it may make sense to talk about American legal culture as opposed to Portuguese or Korean legal culture.

One can distinguish between an "external" and an "internal" legal culture. The internal legal culture is the legal culture of those members of society "inside" the legal system, so to speak?that is, those who perform specialized legal tasks, for example, lawyers and judges. The legal culture of everybody else is external legal culture.

Concepts of legal culture are, or ought to be, significant for the understanding of constitutional history and in explaining how constitutional doctrine gets made. Political and social movements always provide the motor force for constitution making and for constitutional change; the decisions of high courts, which create the fabric of constitutional law, are always the product of concrete lawsuits, in which real parties with real social and economic interests are contending. In both cases, purposes, goals, and ideals of litigators and other actors (and of lawyers and judges) are the immediate cause of both stasis or change. Hence, legal culture, it can be argued, is what creates constitutional law and gives meaning and life to the constitutional system.

It is obvious that the texture of constitutional law has changed radically in the course of American history; yet the text of the Constitution itself has been extremely durable, not to say sluggish. The leading cases of modern constitutional law are or pretend to be "interpretations" or glosses on the post-CIVIL WAR amendments, which have not been altered in over a century; the BILL OF RIGHTS;or the text of the original Constitution, which is now some two centuries old. A scholar of 1870 or 1880 who woke from a...

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