European legal cultures as links to Latin American legal cultures

• Author: Antal Visegrády
• Profession: Professor, Head of Chair, University of Pécs (Hungría)
• Pages: 371-383

European legal cultures as links to Latin American legal cultures

Antal VISEGRÁDY647

1. Introduction

It is well known that from the middle ages to the end of the 18th century the

European continent shared a unified law and a single jurisprudence.648 They were based

upon the Corpus Iuris Civilis and the Corpus Chrisit Canonici which were later

supplemented by several important legal institutions of territorial rights and customs.

These elements constituted the content of the so called ius commune.

However, by the 19th century the law had equated with the law of the singular nation

states. This is to be taken as the origin of our problem at issue. Although the legislative

efforts of the European Community outlined a unified European law in the past decades.

2. The notion of legal culture and its categories

The relationship of culture and law is characterized by permanent interaction and

interdependence.649 The nature of the relationship could be summed up in two tenets: on

the one hand, law is an element of the culture of a society, and on the other hand, there

can be no law or legal system not penetrated by the culture of the society.

Legal culture, just like political culture, is a result of historical development. The

political culture can influence or even mould the characteristics of the legal culture.650

The current state of legal culture is always between tradition and innovation. The

development of a legal culture is a long process. It is not simply organic growth – it sets

the task of preserving the given culture. Having a legal culture is neither the insistence

upon the given nor change for the sake of change only.651

The composing elements of legal culture are the following: a) written law and

“living” law; b) institutional infrastructure (judicial system, legal profession); c) the

models of legally relevant behavior (e.g. legal actions); and d) legal consciousness.652

In some respects, legal culture can be divided into two parts: “external” (lay) and

“internal” (professional) legal culture653.

Some even find it apt to talk about legal “subcultures”. The possible use of the term

could be exemplified by the fact that those unwilling to serve in the armed forces are

647 Professor, Head of Chair, University of Pécs (Hungría).

648 ROUSSEAU was right in writing at the time that «Il n’y a plus aujourd’ ui de Francais, de

Allemands, d’Espagnols, d’Anglais meme, quoi qu’on en dise; il n’e que des Européens». Rousseau,

J.J.: Considerations sur le Gouvernement de Pologne, et sur sa réformation projetée. In: Ouvres

Completes. Vol. 3. Gallimard, Paris, 1964.

649 See e.g. MAYER, M. E.: Rechtsnormen und Kulturnormen. Schletter, Breslau, 1903. 24. Fezer,

K. M.: Teilhabe und Verantwortung. Beck, München, 1986, p. 22.

650 TARELLO, G.: Atreggiamenti dottrinali e mutamenti strutturali dell’ organizzazione qiuridica.

Materiali per una storia della cultura giuridica. Vol. XI. (1981) No. 157-166.

651 Schäffer, H.: Társadalmi környezet és jogi kultúra. (Social Environment and Legal Culture),

Magyar Jog, Vol. 43. (1996) No. 1.

652 See VISEGRÁDY A.: A jog- és állambölcselet alapjai. (The Grounds of the Theory of Law and

State). Dialóg Campus. Bp.-Pécs, 2000. p. 2.

653 See FRIEDMAN, L. M.: Law and Society. Prentice Hall, Englewood Cliffs, N. J., 1977, p. 76.