Transversal Dimension A: Cultures of Differentiation and Comparing Legal Cultures

It is the specific differentiation pattern of each society that gives it its own form and shape. Consequently, Weber considered one of the fundamental questions of differentiation theory to be which spheres were in view and which trajectory their rationalisation took. Theories developed after Weber only gave marginal consideration to this question. However, looking at more recent developments in differentiation discourse, which view spheres not primarily in terms of abstract system logic, but rather as practice horizons and fields of action, this issue is becoming increasingly relevant again. Which topics should be discussed as economic issues and which ones as moral issues? Where does law end and religion begin? Which trajectory do formal and material rationalisation processes take? Which facts are politicised or even aestheticised, and to what extent? And to what cultural foundations do these and other types of demarcation point? The only way to answer all of these questions is to conduct a differentiation analysis which compares cultures. It is questions of this nature, and trans-civilisational differences with regard to the comparative aspects identified in this context, that we are seeking to address with the concept of differentiation cultures.
These fundamental questions of social theory have serious implications for the scope afforded to the legal sphere in the different zones of global societies. Consequently, it is necessary to address once more the fundamental issue of the place of law in the differentiation and integration framework of contemporary societies. What is coded as “law” in different cultural contexts, and with which spheres is the law competing directly or indirectly for the prerogative of interpretation in each case? Might the law also be considered a “guardian” of the differentiation system, or even the medium in which boundaries are drawn and negotiated between spheres? And if this is the case, how can the law be designed as the form and medium of these negotiation processes and as a stand-alone sphere at the same time, one which is itself reflected in its diverse subordinate systems? Against this backdrop, the examination of law as culture, especially where it involves comparing societies, begins with a comparison of how the respective legal spheres relate to economy, politics and community, which show cultural variance with regard to the presumably religiously based models of the “correct” social order. In order to investigate the moorings of a division of the world into sub-areas, spheres, fields etc., we must raise awareness of the world views which give rise in different ways to these separations and distinctions and, not least, identity-giving legal pictures which consolidate into legal cultures. In this way, it also becomes clear that questions about the cultural design of law and the structural differentiation patterns in societies cannot be considered in isolation from one another.
As such, the “legal analysis as cultural research” conducted at the Center is particularly relevant here to jurisprudence, in which the relationship between comparative legal cultures on the one hand and classic comparative law on the other is becoming increasingly decisive. Juridical comparative law, originally known as législation comparée, has since Ernst Rabel taken a completely different direction to the cultural hermeneutic, developing into functional comparative law, which is based on the social function of regulations beyond the particular dogmatic structure. For some time now, it has been accompanied by the approach of com-parative legal cultures, whose proponents, however, due to the cultural relativity of law, are sceptical on the whole of moves to standardise law. The major juridically focused processes in the development of uniform law have so far barely found their way into the cultural studies and social science dimensions of comparative legal cultures. There has been very little overarching theoretical and methodological reflection to date on the questions arising with regard to harmonisation, approximation and standardisation; there is a need on the one hand to initiate a discourse spanning the juridical sub-disciplines and on the other hand to promote more intensive dialogue between culturally/humanities-focused comparative law and juridical comparative law. At meta level, research into different legal cultures of legal approximation or comparative law would be on the agenda.
The goal from a juridical perspective is to reap more of the benefits of comparing legal cultures when introducing legislation and setting legal precedents, whether at nation-state, supranational or private level, and when applying and enforcing the law. The focus at national level is on jurisprudential reception and legal transfer, often discussed as “legal transplants”, while at European and national level, the emphasis is on legal approximation and standardisation, and how they are carried out by supranational organisations on the basis of comparative law, as well as by groups of researchers through the development of principles. The comparative legal culture perspective is also significant in the context of the application of the law, whether in transnational matters, like the fleshing out of vague legal terminology such as the child’s welfare in family law and the recording of injustice and culpability in criminal law, or in the interpretation of uniform law, which is ultimately to be understood as a mixed legal system. Finally, comparison plays a key role in regard to the enforcement of law, which is characterised by different dispute cultures (adversarial proceedings, mediation, arbitration).