Legal Culture

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LEGAL CULTURE

The expression "legal culture" refers to opinions, attitudes, values, and expectations with regard to law and legal institutions. Every man and woman in society has at least some opinions on this subject—about judges, courts, the Supreme Court, or lawyers—but the expression, as the word "culture" implies, refers not so much to individuals as to generalizations about the opinions and values of members of some distinct group, class, category, or jurisdiction. One can speak about the legal culture of men as opposed to women, blacks as opposed to whites, or of salespeople, teachers, drug addicts, or people who live on farms. It may also be possible to make statistical generalizations about particular countries, so that it may make sense to talk about American legal culture as opposed to Portuguese or Korean legal culture.

One can distinguish between an "external" and an "internal" legal culture. The internal legal culture is the legal culture of those members of society "inside" the legal system, so to speak—that is, those who perform specialized legal tasks, for example, lawyers and judges. The legal culture of everybody else is external legal culture.

Concepts of legal culture are, or ought to be, significant for the understanding of constitutional history and in explaining how constitutional doctrine gets made. Political and social movements always provide the motor force for constitution making and for constitutional change; the decisions of high courts, which create the fabric of constitutional law, are always the product of concrete lawsuits, in which real parties with real social and economic interests are contending. In both cases, purposes, goals, and ideals of litigators and other actors (and of lawyers and judges) are the immediate cause of both stasis or change. Hence, legal culture, it can be argued, is what creates constitutional law and gives meaning and life to the constitutional system.

It is obvious that the texture of constitutional law has changed radically in the course of American history; yet the text of the Constitution itself has been extremely durable, not to say sluggish. The leading cases of modern constitutional law are or pretend to be "interpretations" or glosses on the post-civil war amendments, which have not been altered in over a century; the bill of rights;or the text of the original Constitution, which is now some two centuries old. A scholar of 1870 or 1880 who woke from a century's sleep would simply not recognize today's body of constitutional doctrine; current equal protection doctrine, for example, would be totally beyond his or her comprehension. Yet much of the standard work on both constitutional theory and constitutional history has a strongly normative flavor, and it fails to come to grips with the powerful forces that have turned old doctrines topsyturvy and pulled new doctrines into existence like rabbits from a magician's hat.

The radical changes in constitutional doctrine imply radical changes in internal legal culture; but these in turn are reflexes of radical changes in external legal culture, the culture of the educated community, of business and political leaders, and indeed, of the public at large. The Constitution, in fact, is always interpreted (and necessarily so) in the light of ruling ideas of the times. The Justices may make use of general social norms either consciously or unconsciously; because of the standardized and formalistic style in which Supreme Court decisions are written, it is not easy to know the level of awareness of the Justices or the way in which they conceive of their judicial role.

In the broadest sense, studies of constitutional doctrine and constitutional history that are sensitive to social context are studies of legal culture, although they do not necessarily use this term. Other studies deal with American culture and the Constitution more explicitly: Michael Kammen, for example, has written a history of the meaning and imagery of the Constitution in American culture—an exploration, among other things, of the symbolic importance of the Constitution in American politics and the cult of the Constitution as a "sacred" document.

Constitutional doctrine itself is a reflection of legal culture, but it would be naive to assume that the general public or any particular segment of it share the same views as the justices who enunciate legal doctrine. There has been some research on public attitudes toward civil liberties and the Bill of Rights; such studies are necessarily studies of the congruence (or lack of congruence) of external and internal legal culture. The most important recent study (by Herbert McClosky and Alida Brill, in 1983) found that the general public tends to agree strongly with the general ideas behind the Bill of Rights, but on many specific issues, public opinion differs from the current state of doctrine—and from the views of legal and political elites. These differences tilt in a particular direction. The general public is less "liberal" than the Court and less "liberal" than legal and political elites on such issues as whether pornography can be banned, whether atheists should be allowed to teach or hold public office, or how far to carry the separation of church and state.

So-called impact studies are also relevant to the study of legal culture. These are studies of the ways in which decisions of the Supreme Court, or other courts, are received, used, followed, evaded, or flouted by the public, or some particular part of the public. Legal culture is not only the source of doctrine; it monitors the reaction to doctrine and to specific decisions of the courts. There is a sizeable literature, for example, on reactions to the Supreme Court's decisions barring prayers from public schools. In the broadest sense, much of the vast literature on the controversy over abortion or on school desegregation is impact literature and, hence, relevant to the role of legal culture in the constitutional system. But there has not been much success as yet in framing general theories about impact or about the role of legal culture in producing compliant or noncompliant behavior.

The neglect of legal culture by constitutional scholars has undoubtedly impoverished the understanding of constitutional law. Normative arguments are tossed back and forth on many crucial issues: for example, what ways of "interpreting" the Constitution are legitimate and what ways are illegitimate. "Originalists" claim that the duty of judges is to seek out the original intent of the Framers; judges have no legitimate right to read their own values into the Constitution. Such arguments, rhetorically speaking, put the issue very starkly as a kind of either-or position. Apparently, the only alternative to strict construction is a situation in which judges act arbitrarily, according to whim, and simply spin constitutional doctrines out of their heads. In a system of checks and balances, where are the checks and balances on the power of the Supreme Court Justices to create law out of thin air?

One answer (there are many others) is that the Justices are constrained by internal and external legal cultures. The internal legal culture is inescapably inside the heads of the Justices. The Justices are lawyers, trained in a particular tradition. The internal legal culture has its own powerful symbols, its own language and etiquette; and the Justices operate in this context. Of course, each Justice is an individual man or woman; each has his or her own take on the internal legal culture. But this culture sets boundaries and limits within which the Court, of necessity, does its work.

The external legal culture is an even more powerful curb, in fact, if not in theory. The concept of legal culture assumes that judges never "invent" doctrine; that in any given period, the general legal culture sets limits, defines boundaries, and establishes a range of opinions no less than does the internal legal culture (the legal tradition). It is out of the question for a Supreme Court Justice today, no matter how "conservative," to be as retrograde on racial issues as the most "liberal" judge of the 1880s. The whole spectrum of opinion has shifted in the direction of racial equality, and the corresponding interpretation of the meaning of equal protection has shifted accordingly. The social context is the source of the norms that mold general opinion on matters of race. The norms change over time as context changes. The Justices today live in a world of computers, gene-splicing, and communication satellites, and their views are profoundly affected by the world all about them. They also live in a society dedicated more deeply to individual rights and to race and gender equality than the world of their predecessors. The study of legal culture is a study of this world, and those who stress this factor believe it is one of the best ways to understand where the Court has been, where it is, and where it is going.

Lawrence M. Friedman
(1992)