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Law, Culture, and Ritual: Disputing Systems in Cross-Cultural Context
Disputing systems are products of the societies in which they operate—they originate and mutate in response to disputes that are particular to specific social, cultural, and political contexts. Disputing procedures, therefore, are an important medium through which fundamental beliefs, values, and symbols of culture are communicated, preserved, and sometimes altered. In Law, Culture, and Ritual , Oscar G. Chase uses interdisciplinary scholarship to examine the cultural contexts of legal institutions, and presents several case studies to demonstrate that the processes used for resolving disputes have a cultural origin and impact.
Ranging from the dispute resolution practices of the Azande, a technologically simple, small-scale African society, to the rise of discretionary authority in civil litigation in America, Chase challenges the claims of some scholars that official dispute systems are more reflective of the interests and preferences of elite professionals than of the cultures in which they are embedded.
Ranging from the dispute resolution practices of the Azande, a technologically simple, small-scale African society, to the rise of discretionary authority in civil litigation in America, Chase challenges the claims of some scholars that official dispute systems are more reflective of the interests and preferences of elite professionals than of the cultures in which they are embedded.
224 pages, Hardcover
First published November 1, 2005
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April 16, 2009
Chase, Oscar. Law, culture, ritual. 2005
This book explores dispute resolution techniques through a comparative law approach. He begins with boundaries of 'culture' boundaries of 'dispute', 'fuzzy boundaries'.
In the next chapter he explores the Azande oracle as a source of law.
Modern (industrial, Western) legal systems: civila nd common law
law is embeded in society and societyis haped by law
American "exceptionalism'
Lipset's 'American values': liberty, egalitarianism, individualism, populism, laissez-faire. Essentializing a culture.
American Procedural Exceptionalism:
The Civil Jury (55)
Party Control of Evidence Gathering (58)
Role of the Judge (62)
Roel of Experts (Witnesses)
Typical Division
Common Law = adversarial
Civil Law = inquisitorial
Damaska
Character of Authority (Hierarchy or Coordinate)
Dispositions (Activist or reactivist)
America is 'Coordinate reactivist, whereas many civil traditions are hierarchy activist)
Discretionary Power of the Judge in Cultural Context (72-93)
Comparison of forum non conveniens and constitutional law governing personal jurisdiction
FNC: interesting in the ways that discretion is allowed, in the ability of the judge to define inconvenience to many of the parties involved (78)
Discretion as efficiency
Discretion as Law's 'Age of Anxiety'
Cardozo 'A fruitful aprent of injustice is the tyranny of concepts.'
Judges using factor-weighting policy analysis more than the rule-bound formalism, and as managers versus judges as representative of the state or provider of framework.
An overviw of the rise of ADR in the American legal system. This is, for me, the most interesting section of the book in that it explores the spatiotemporal distribution and processes of informal practices (arbritration, mediation/negotiation, and other methods) as they relate to formal law. This section alone makes this book worth reading.
He ends the book with a section on the importance of ritual in law followed by another section that looks mainly at how disputing influences cultural pathways (behaviors). The book closes with a few pages addressing critics of cultural relativism, but not really adding anything to the book.
This is a interesting introduciton to dispute resolution in comparative law. The section on the growth of ADR in America is fascinating to me. The book is well-written, it can be easily read over a couple days. There are a couple problems I have with the book, though probably not the typical ones about cultural relativism. First, the price. $50, really? Second, I wish comparative lawyers would spend more time grounding their conceptual frameworks in social and anthropoogical work. The sloppiness of the ways in which terms like culture, institutions, rituals, and behaviors are conceptually addressed and analytically deployed leaves much to be desired for me. How in the world can we make any headway in understanding the social aspect of life when what these concepts signify is breezed over? It's like a botanist talking about petals, bracts, and tendrils with no clear way of dividing them up or reference to any previous literature. I think that this second concern is widespread in comparative law and that it makes this book significantly less insightful than it could have been with all the jewels of case studies and insights that are brought up there within.
Final verdict: good for students of dispute resolution.
This book explores dispute resolution techniques through a comparative law approach. He begins with boundaries of 'culture' boundaries of 'dispute', 'fuzzy boundaries'.
In the next chapter he explores the Azande oracle as a source of law.
Modern (industrial, Western) legal systems: civila nd common law
law is embeded in society and societyis haped by law
American "exceptionalism'
Lipset's 'American values': liberty, egalitarianism, individualism, populism, laissez-faire. Essentializing a culture.
American Procedural Exceptionalism:
The Civil Jury (55)
Party Control of Evidence Gathering (58)
Role of the Judge (62)
Roel of Experts (Witnesses)
Typical Division
Common Law = adversarial
Civil Law = inquisitorial
Damaska
Character of Authority (Hierarchy or Coordinate)
Dispositions (Activist or reactivist)
America is 'Coordinate reactivist, whereas many civil traditions are hierarchy activist)
Discretionary Power of the Judge in Cultural Context (72-93)
Comparison of forum non conveniens and constitutional law governing personal jurisdiction
FNC: interesting in the ways that discretion is allowed, in the ability of the judge to define inconvenience to many of the parties involved (78)
Discretion as efficiency
Discretion as Law's 'Age of Anxiety'
Cardozo 'A fruitful aprent of injustice is the tyranny of concepts.'
Judges using factor-weighting policy analysis more than the rule-bound formalism, and as managers versus judges as representative of the state or provider of framework.
An overviw of the rise of ADR in the American legal system. This is, for me, the most interesting section of the book in that it explores the spatiotemporal distribution and processes of informal practices (arbritration, mediation/negotiation, and other methods) as they relate to formal law. This section alone makes this book worth reading.
He ends the book with a section on the importance of ritual in law followed by another section that looks mainly at how disputing influences cultural pathways (behaviors). The book closes with a few pages addressing critics of cultural relativism, but not really adding anything to the book.
This is a interesting introduciton to dispute resolution in comparative law. The section on the growth of ADR in America is fascinating to me. The book is well-written, it can be easily read over a couple days. There are a couple problems I have with the book, though probably not the typical ones about cultural relativism. First, the price. $50, really? Second, I wish comparative lawyers would spend more time grounding their conceptual frameworks in social and anthropoogical work. The sloppiness of the ways in which terms like culture, institutions, rituals, and behaviors are conceptually addressed and analytically deployed leaves much to be desired for me. How in the world can we make any headway in understanding the social aspect of life when what these concepts signify is breezed over? It's like a botanist talking about petals, bracts, and tendrils with no clear way of dividing them up or reference to any previous literature. I think that this second concern is widespread in comparative law and that it makes this book significantly less insightful than it could have been with all the jewels of case studies and insights that are brought up there within.
Final verdict: good for students of dispute resolution.
February 21, 2010
Briefly, this text is very effective at giving a historiographic overview of ADR within the United States, as well as, bringing attention to the ritual and 'faith' inherent in traditional fact finding practices in modern systems of jurisprudence. This is a very good starting text for a comparative analysis project in modern legal structures.
Displaying 1 - 2 of 2 reviews