55 The Legal Cultures of Europe



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55 The Legal Cultures of Europe

James L. Gibson Gregory A. Caldeira

Sociolegal scholars have become increasingly interested in comparative legal cultures, largely under the hypotheses that what people think about the law and the values embedded therein has something to do with how they be­have and, ultimately, some consequences for the larger political and legal sys­tems. For instance, attitudes toward the rule of law no doubt influence (though they do not determine) people's willingness to comply with laws. Most agree that one cannot understand the role of law in society without understanding something of legal cultures. We present an investigation into the legal cultures of the countries of the European Union. Drawing on mass surveys conducted within each of the countries (including a separate sample in East Germany), we explore popular attitudes toward various dimensions of law: support for the rule of iaw; perceptions that law is a nonneutral, repressive force; and support for individual liberty. Although our analysis focuses on national differences, we also explore within-system variation (e.g., across various socioeconomic strata). Ultimately, our purpose is to document cross-national differences in legal cul­tures and to take some tentative steps toward explaining the origins of these differences.



T

JL h
he concept "legal culture" figures often and prominently in the scholarship of the diverse disciplines of sociolegal studies. Political scientists, for example, use the concept to account for variation in the permissible legal delay in trials and in the behav­ior of judges and lawyers, as well as to explain differences in rates of litigation. Sociologists have found the concept useful for analy-

This revision of a paper delivered at the 1995 Annual Meeting of the Midwest Polit­ical Science Association, Palmer House Hilton, Chicago, 6-8 April 1995, is a joint product of the two authors. We are indebted to the (U.S.) National Science Foundation (SBR-9213905, SBR-9311397, SBR-9213201, and SBR-9312689) and the (German) von Hum-boldt Stiftung for major support for this project. We also acknowledge the support of the Limited-Grant-in-Aid Program (University of Houston). None of these agencies bears any responsibility for the results or interpretations. We are indebted to Dominique Van-craeynest (Director of INRA) and Anna Melich and Eric Marlier (both of the Eurobarometer) for their technical assistance on this project. Without the extraordmary support and collaboration of Karlheinz Reif (Director of the Eurobarometer) we could not have brought this project to fruition. Mark Shephard, Kris Guffey, Pam Moore, and Marika Litias provided valuable research assistance. Peter D. Russell and Lynn Mather provided most helpful and insightful comments on an earlier version. Address correspon­dence to James L. Gibson, Dept. of Political Science, University of Houston, Houston, TX 77204.. E-mail: jgibson@uh.edu.

Law & Society Review, Volume 30, Number 1 (1996)

© 1996 by The Law and Society Association. All rights reserved.



56 The Legal Cultures of Europe

ses of the ethics and practices of legal organizations. And anthro­pologists, using a more holistic approach, have characterized the legal cultures of entire societies. Indeed, this notion "legal cul­ture" is one of the most general and ubiquitous concepts in the study of law and society.

Yet much too often scholars invest the concept "legal culture" with little rigorous meaning: indeed some have questioned whether culture is viable as an analytical construct for scientific analyses of law. Formal definitions, to the extent they are prof­fered, vary tremendously across disciplines and scholars. It is not clear, for instance, whether legal culture may be thought of as a unidirnensional or multidimensional concept. Perhaps most im­portant, we can point to only a few attempts in the literature to operationalize legal culture as a directly measurable variable. All too often, legal culture is a term used to account for that which cannot be accounted for in any other way—that is, culture be­comes the beneficiary of the residual term in explanatory equa­tions. If we are to use the concept to test important hypotheses about the connections between law and society, we must attach rigorous operational meaning to legal culture. Few scholars have attempted this important task.

We wish to accomplish four specific goals here. First, we offer a multidimensional conceptualization of legal culture. Although we conceive of legal cultures as a broad syndrome of values, we focus here on three particular subdimensions: the valuation peo­ple attach to individual liberty, their support for the rule of law, and their perceptions of neutrality in law. Second, we operation­alize these subdimensions of legal values and present evidence on the distribution of these attitudes within and across several Western European nation-states. We also investigate the interre­lationships among these beliefs, focusing in particular on whether perceptions of the neutrality of law are associated with normative commitments to obey universalistic law. Third, we ex­plore the correlates of legal values at both the micro (individual) and macro (nation-state) levels. Finally, we speculate about how rigorous studies of mass legal culture might move beyond our limited efforts to begin the process of testing important hypothe­ses about the role of culture in the operation of law.

This analysis focuses on the values of residents of the mem­ber states of the European Union as revealed during a survey conducted in the fall of 1993.J The EU is an especially important venue for studying variation in mass legal cultures since such a wide variety of countries is represented in the community, rang­ing from Great Britain, to Portugal, to Greece. Moreover, Euro­pean cultures are largely unexplored territory; the limited extant

1 We refer to the supranational entity as the European Union in this analysis, recog­nizing that before the ratification of the Treaty of Maastricht in 1993 the community was known as the Enrnnean rVn-nimiTiitv

Gibson Sc Caldeira 57

work on cultural aspects of law focuses almost exclusively on the United States (but see Ehrmann 1976). And as more and more nations from Scandinavia (Finland and Sweden voted in 1994 to enter the EU) to Central and Eastern Europe (Austria entered in 1994 as well; others, perhaps later), and perhaps even to the east­ern outskirts of Europe (e.g., Poland, Turkey) seek to join the European Union, the question of the diversity of legal values be­comes all the more important for transnational legal policy. Fur­thermore, the structures of formal European legal systems vary; for example, the system is common law in Britain and Ireland, civil law in France and most of the Continent, with important (even if subtle) differences among those systems stemming from civil law traditions. Thus, it seems quite likely that the cultural values underpinning these systems differ as well. Although ours is only an initial foray into the structure of legal values in Europe, the importance of the issue may well justify the tentative nature of our efforts.

The Concept "Legal Culture"

Law and legal systems are cultural products like language, mu­sic, and marriage arrangements. They form a structure of meaning that guides and organizes individuals and groups in everyday interactions and conflict situations. This structure is passed on through socially transmitted norms of conduct and rules of decisions that influence the construction of intentional systems, including cognitive processes and individual disposi­tions. The latter manifest themselves as attitudes, values, be­liefs, and expectations. (Bierbrauer 1994:243)

There are essentially three major ways in which "legal cul­ture" has been employed in analyses of law and society.2 The first is most clearly grounded in the anthropological traditions, with perhaps the most widely cited exemplar of this line of inquiry represented by studies of customary law (e.g., Llewellyn & Hoebel's Cheyenne Way).5 The distinguishing characteristic of this body of work is that it treats culture as a holistic concept, not suited to reductionist analysis, and seeks to determine the ways in which cultural values affect the operation of law. A recent exam­ple of this line of research can be found in Moore's insightful analysis of the transplantation of the British concept of rule of law to Africa (on Tanganyika, see Moore 1992).



2 Blankenburg (1994:792) offers a somewhat different approach to understanding
legal culture: "We apply the term culture to the set of all interrelationships occurring at
three levels: (1) the level of substantive law and procedural codes, (2) the level of institu­
tions such as the courts and the legal profession, and (3) the level of legal behavior and
attitudes toward law." A similar approach can be found in Ehrmann (1976). In contrast,
we distinguish between formal institutions and the informal expectations—originating in
broader cultural values—about how those institutions ought to function.

3 For a collection of essays with this focus see Varga 1992.

58 The Legal Cultures of Europe

A second important line of inquiry on legal culture focuses much more specifically on how culture shapes the operation of formal legal institutions. Levin's work (1972, 1977) on the crimi­nal courts in Pittsburgh and Minneapolis, as well as Wilson's (1976) research on styles of policing, reflects this tradition. There, the emphasis is on the ways in which broad cultural values affect the operation of specific legal institutions. More recently, this line of thinking has figured in accounts of variation in delay in the trial courts (e.g., Church 1982, 1985, 1995; Schiller & Manikas 1987; Sherwood 8c Clarke 1981). As Kritzer and Zemans (1993:538) described this framework: "local patterns of practice reflect in part informal norms and expectations that regular play­ers in the system (lawyers and judges) have developed and have come to accept as 'how we do things.' " On the same general theme but focusing on the development of "rights conscious-ness," Edelman and associates have studied organizational re­sponses to equal employment opportunity legislation, an exam­ple of research exploring the relationship between legal cultures and organizational values and incentives (Edelman, Erlanger, 8c Lande 1993; see also McCann 1994). Perhaps the most compre­hensive study ever conducted using this framework can be found in the work of Eisenstein, Nardulli, and Flemming (1988).

These first two approaches to studying legal culture focus mainly on legal elites.4 A third approach to studying legal culture moves outside the legal system per se to focus more directly on the values of the broader mass public.5 The trademark of this sort of study is the mass opinion survey (cf. Almond 8c Verba 1963; Inglehart 1988). "Commonly it is assumed that legal rules are rooted in social norms and that the legal system expresses the notions that a dominant group in society has about what is 'just''' (Blankenburg 1994:791). We include in this category studies of attitudes toward equality and justice (Mason 1992), the attribu­tion of moral and legal responsibility (Hamilton 8c Sanders 1992; Sanders 8c Hamilton 1992), the many inquiries into procedural justice expectations and perceptions (Tyler 1990; Lind 1994), re­search on political tolerance and civil liberties (e.g., Sullivan, Piereson, 8c Marcus 1982; Gibson 1989), and analyses of rights consciousness among the mass publics (e.g., Gibson & Duch 1994). Most important, research on the cultural origins of disput­ing and litigiousness holds a prominent place in this body of cul­tural literature (e.g., Grossman et al. 1982; Plett 8c Meschievitz 1991; Kritzer 1988). Though there are those who are skeptical



4 Friedman (1975:223) refers to the difference between elite and mass cultures as
external versus internal legal cultures: "The external legal culture is the legal culture of
the general population; the internal legal culture is the legal culture of those members of
society who perform specialized legal tasks."

5 As Blankenburg (1994:791) rightly notes, this approach defines " 'legal culture' as
comprising 'attitudes, beliefs and values with respect to law.' "

Gibson & Caldelra 59

that the legal system is much affected by the broad values within the mass public (e.g., Blankenburg 1994), a great deal of effort has been devoted to studying the attitudes and values of ordinary citizens.

Our own approach to legal values lies squarely within this lat­ter tradition. Specifically, we are interested in the structure of the values held by ordinary citizens on important issues concerning the nature and operation of law. These broad values are impor­tant because they structure more specific opinions and expecta­tions toward legal institutions, including the willingness to turn to legal institutions for the management of essentially private conflicts.6 We do not focus on more ephemeral opinions on is­sues of the day but instead attempt to measure more stable and more deeply held legal values.

Dimensions of Legal Values

But exactly what sort of values are important within legal cul­tures? Here we distinguish among three sets of orientations: (1) legal consciousness, which refers to specific attitudes toward legal issues and institutions; (2) legal cultural values, by which we mean more general values relevant to the legal system but not necessar­ily closely connected to it; and (3) more general cultural values, such as a preference for individualism over collectivism, trust in people, etc. (cf. Putnam 1993; Bierbrauer 1994). We believe all these values, attitudes, and opinions are important, but legal val­ues especially warrant consideration since they have clear, if not necessarily proximate, implications for the operation of the legal system, and at the same time they are general enough to (a) structure a variety of opinions and (b) be comparable across dif­ferent legal systems.

In particular, we investigate here three components of mass legal values—attitudes toward the rule of law, perceptions of the neutrality of law, and the relative valuation attached to individual liberty. This set of attitudes, of course, does not exhaust the pan­oply of values that constitute a legal culture, but surely these are three central dimensions of any definition of legal culture. It is useful to explicate these values a bit further before turning to the data and empirical analysis.



6 This analysis is consequently closely related to studies on public values in other areas such as foreign affairs values (see Hurwitz & Peffley 1987). As Heath, Evans, and Martin note (1994:115), "it has been suggested that individuals hold fundamental and enduring attitudes towards general moral and political principles like equality, and that these enduring core beliefs can account in part for the individual's attitudes towards the more transient political issues of the day."

60 The I-egal Cultures of Europe



Support for the Rule of Law

Willingness to tolerate exceptions to the law is an attitude of some importance in the operation of a legal system. At the ex­treme, of course, nearly everyone agrees that there are some cir­cumstances under which law must be put aside in favor of justice or self-interest or the need to craft immediate solutions to press­ing political and legal problems. At the opposite end of the con­tinuum, nearly everyone also believes that, in general, laws ought to be followed, that citizens and rulers have a normative obliga­tion to abide by the rule of law, and that under most circum­stances the universal and equal application of the law should pre­vail. But between these two extremes, there is a great deal of latitude, and it is this variability that is of most interest to us. We hypothesize that individuals differ in the rigidity with which they believe law ought to be adhered to. Some believe that law ought to prevail unless there are severe exigencies to the contrary; others believe that law is something to be manipulated or ig­nored in pursuit of one's own self-interests (variously defined). This continuum has been dubbed "universalism versus particu­larism" in some earlier research (e.g., Levin 1972, 1977; Wilson 1976). The extent to which citizens believe that they ought to adhere rigidly to law is one aspect of legal values, and it is quite likely that nations differ significantly on this dimension.7



Perceptions of the Neutrality of Law

Various people may well perceive the role of law in society in quite different lights. For some, law is no doubt thought of as a rather neutral force, perhaps embodying consensually held social values. Those who view law in this way are likely to value it as a liberating force, either because it creates or reinforces a desira­ble social order or because it serves other interests of the entire citizenry. This view of law as consensual and neutral is common within a variety of types of legal scholarship (e.g., "neutral princi­ples" for constitutional interpretation, "jural postulates," etc.).

Others, however, may perceive law as an external, repressive, and coercive force. Instead of embodying a broad social consen­sus to which nearly all citizens subscribe, law may be seen as an instrument of social control, as a means by which others advance their contrary political interests. By this view, law is not neutral in the sense that it represents the values of the entire society, but instead it is seen as representing the specific values of hegemonic

7 We fully acknowledge that this is nothing more than a partial conceptualization of the concept "rule of law" and that typically a whole series of values is associated with the concept. However, on many aspects of the rule of law—e.g., whether the government ought to be allowed to govern arbitrarily, setting law aside whenever necessary or expedi­ent—there is most likely consensus within both the mass and elite publics. Given the practical limits (and costs) of this preliminary analysis, here we investigate what we regard as the essential element of this concept.

groups and interests. This view of law as an instrument of polit-ical struggle, of political conflict, stands in sharp contrast to the perception that law represents the consensual interests of society. We therefore propose a continuum ranging from the view of law as a largely neutral, consensual, liberating institution to the

ing the interests of dominant social and economic groups. In the

view that law in general represents the interests of the entire soci­ety and that few will express a fundamental alienation toward law and legal institutions.

Conceptually, we distinguish between support for the rule of law and the perception that law is a neutral institution. Empiri­cally, however, we expect a fairly close connection between the two concepts. Those who view law as neutral, we anticipate, will be more willing to embrace the universalism of the rule of law, to be willing to endorse a more absolutist view of the need for com­pliance with law (cf. Tyler 1990). Conversely, we expect the view that law is a repressive institution, representing the interests of the few rather than the many, to be associated with skepticism about the necessity of following law. Thus, although we do not necessarily posit a causal relationship between the two concepts (and even if we did, the nature of this relationship would be diffi­cult to disentangle given our cross-sectional data), we do hypoth­esize at least a moderate intercorrelation between the measures.

Valuation of Individual Liberty

Earlier research has argued that a basic distinction among people is in their willingness to tolerate disorder for the benefit of individual liberty or, conversely, their willingness to sacrifice liberty for the sake of social order (Gibson, Duch, & Tedin 1992; Galdeira & Gibson 1992). This seems to be a basic social attitude, one stable over time and closely associated with a variety of other political beliefs. Moreover, struggles over the extent of individual liberty constitute the very heart of most legal systems. Since in the abstract everyone favors both individual liberty and social or­der, we have posed to the respondents items that present a con­flict between these two desired states. Their choices under these conditions reveal the relative valuation they attach to individual liberty and to social order. We hypothesize that those who value liberty are more likely to favor the universalistic application of the rule of law and are less likely to view law as an instrument of repression and social control.



Summary

Thus, our purpose in this article is to explore mass attitudes toward these three important dimensions of legal culture. Our interest lies in three empirical questions: the distribution of the values within the mass publics of Western Europe, the degree to which the three values are interrelated, and whether these values represent some sort of coherent mass legal culture.

We base our report on data from two major surveys of mass opinion within the European Union, conducted in 1992 and 1993.

The 1992 Eurobarometer Survey

The first survey was conducted in each of the member states of the European Community between 21 September and 15 Oc­tober 1992. We commissioned several questions concerning the European Court of Justice, and they were asked as part of the Eurobarometer 38.0, the semiannual mass survey of the Commis­sion of the European Communities. The Eurobarometer surveys are representative of the populations of the respective nationali­ties, aged 15 years and over, in each of the countries.8 .

In the fall of 1993 we were also able to reinterview subsam-ples of the respondents in the 1992 Eurobarometer. The reinterviews were by telephone, except in Ireland, Portugal, and East Germany, where telephone penetration was not sufficiently high to ensure representative samples. We excluded Northern Ireland from the panel reinterviews; and since national law made it impossible to reinterview the Danish respondents, we drew a fresh sample in Denmark and interviewed them by telephone. We summarize a panoply of methodological issues concerning the panel in the technical appendix to this article. For most of the analysis reported here, we rely on data from the second wave of the panel, because they are more complete.



8 This data set is archived as ICPSR 6044 at the University of Michigan. Further details about the methodology of the survey are available as part of the documentation of the data set.

Table 1 reports the responses to the eight items we used to measure legal attitudes within the mass publics of each of the member states of the European Union. The data in this table reveal significant cross-national variability in attitudes toward law. Consider first the items on attitudes toward the rule of law. To anticipate the factor analysis results (presented below), the best indicator of attitudes toward the rule of law is the third item: "If you don't particularly agree with law, it is all right to break it if you are careful not to get caught." This is a cynical statement that in essence cedes no moral authority to law. According to this item, the most law-abiding people are clearly the British—nearly 93% of the respondents disagree or disagree strongly with the statement. Similarly, in Italy, The Netherlands, Ireland, Den­mark, West Germany, Spain, and East Germany, we find wide­spread disapproval of the idea that it is legitimate to break laws.


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