Hostname: page-component-84b7d79bbc-4hvwz Total loading time: 0 Render date: 2024-08-01T14:33:22.024Z Has data issue: false hasContentIssue false

Comments on Roger Cotterrell’s essay, ‘The struggle for law: some dilemmas of cultural legality’

Published online by Cambridge University Press:  15 May 2009

Robin West*
Affiliation:
Georgetown University Law Center

Abstract

First, many thanks to Carrie Menkel-Meadow, the editors of The International Journal of Law In Context and the sponsors of this series for facilitating this lecture, and for inviting my participation. And a special thankyou to Professor Roger Cotterrell for sharing with us such a generous, humanistic and hopeful account of law’s moral possibilities, when faced with multicultural conflict within a society governed by a liberal rule of law.1 I very much appreciate the opportunity to reflect on this set of claims, although I feel somewhat an outsider to the task, as I’ll explain below. I understand Professor Cotterrell as arguing, first, that traditional Anglo-American jurisprudence has not sufficiently theorised the role of culture and cultures,2 second, that multiculturalism renders inadequate, for different reasons, both Weberian and non-positivist or non-instrumental accounts of law’s liberal aspirations,3 and third, that one possible way for law to contribute constructively to a moral and peaceful multicultural society would be to conceive of itself not just as an instrument for the fulfilment of private and conflicting individual purposes, not just as the target of passions from a more-or-less unified culture, but rather, as a means of respectful communication between cultures,4 albeit one that imposes individualist and liberal side-constraints on the conversation so fostered: to wit, that the law itself, and its parts, must be rigorously respectful of the autonomy and decency of all individuals, and must demand as much from citizens.5

Type
Research Article
Copyright
Copyright © Cambridge University Press 2009

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Austin, John (1861/1955), The Province of Jurisprudence Determined. New York: Cambridge University Press.CrossRefGoogle Scholar
Bentham, Jeremy (1776/1976), ‘A Comment on the Commentaries. Darmstadt: Scientia Verlag Aalen, 35–56, 60–74.Google Scholar
Cotterrell, Roger (2008), ‘The Struggle for Law: Some Dilemmas of Cultural Legality’, International Journal of Law In Context, 4(4): 373–84.CrossRefGoogle Scholar
Hart, H. L. A. (1994), The Concept of Law. Oxford: Clarendon Press.Google Scholar
Kairys, David (ed.) (1998) The Politics of Law: A Progressive Critique. New York: Basic Books.Google Scholar
Rosenberg, Gerald (1991), The Hollow Hope: Can Courts Bring About Social Change? Chicago: University of Chicago Press.Google Scholar
Sager, Lawrence (2004), Justice in Plainclothes: A Theory of American Constitutional Practice. New Haven: Yale University Press.Google Scholar
Tushnet, Mark (1999), Taking the Constitution Away from the Courts. Princeton: Princeton University Press.Google Scholar
West, Robin (2008), ‘Ennobling Politics’, in White, J. B. (ed.) Resisting the Empire of Force. Princeton: Princeton University Press, 401–405.Google Scholar
White, James Boyd (1984) When Words Lose Their Meaning. Chicago: University of Chicago Press.CrossRefGoogle Scholar
White, James Boyd (1985), Heracles’ Bow. Madison, WI: University of Madison Press.Google Scholar
White, James Boyd (1990), Justice as Translation: an Essay in Cultural and Legal Criticism. Chicago: University of Chicago Press.Google Scholar
White, James Boyd (1994), Acts of Hope: Creating Authority in Literature, Law, and Politics. Chicago: University of Chicago Press.CrossRefGoogle Scholar
White, James Boyd (1999), From Expectation to Experience: Essays on Law and Legal Education. Ann Arbor, MI: University of Michigan Press.CrossRefGoogle Scholar
White, James Boyd (2003), The Edge of Meaning. Chicago: University of Chicago Press.Google Scholar
White, James Boyd (2006), Living Speech: Resisting the Empire of Force. Princeton: Princeton University Press.Google Scholar