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The politics of legal cultures

Banakar, Reza (2008) The politics of legal cultures. Retfærd: The Nordic Journal of Law and Justice, 31 (4/123). pp. 37-60. ISSN 0902-7351

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Abstract

Sociology and anthropology of law were partly developed from inception to empirically address the complexity of the relationship between law and society. Many of their insights into how law is socially constructed through the interaction between cultural, religious, economic and political factors remain incompatible with the aims and concerns of mainstream legal scholarship. Most social scientific approaches to the study of legal institutions and legal behaviour have revealed the plurality of forms of law, demonstrating that law can simultaneously manifest itself in different forms and at different levels of social reality. In contrast, various schools of legal positivism have conceptually separated law from morality, legality from justice, and facts from norms, in order to create a normative basis for justifying the unity and autonomy of law. This paper starts by exploring the tension between Western and Islamic legal cultures of immigrant communities living in the west. It then goes on to argue that the use of such antinomies as facts and norms, or law and morality, which are employed by legal theory in order to conceptually organise itself, diverts our attention away from the fact that law, whether it is defined as the command of the sovereign or the inner order of associations, is not divided into two opposing or contradictory poles. Instead, it consists of countless fragments which are not necessarily related in a formal rational manner.

Item Type:Article
Additional Information:A longer version of this paper was published in Scandinavian Studies in Law volume 53 pp 151-175. This paper was presented at the opening of the Centre for Studies of Legal Cultures, at the invitation of the University of Copenhagen, Faculty of Law, in March 2007.
Uncontrolled Keywords:Legal cultures, living law, pluralism, sharia law, gender, rationality, modernization, immigration
Research Community:University of Westminster > Law, School of
ID Code:6438
Deposited On:21 Apr 2009 14:28
Last Modified:21 Apr 2009 14:28

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