Content area
Full Text
Culture and Tradition in the Legal Context
Culture and tradition appear to be broad, ambiguous, contextdependent, "intuitional," intangible terms, which makes them very difficult to define in a precise manner. Basically, culture refers more to an ongoing state, while tradition underlines the links between the past and today. But, due to the imprecise nature of these terms, I do not venture to provide any detailed exposition of them, adopting only a tentative working definition solely for the sake of this article. Thus, I will use both terms almost as synonyms and understand them as a set of convictions, beliefs, principles, precepts, or values lasting in time and ascribable to a specific community or society. Such convictions, beliefs, principles, precepts, and values result in a feeling of justice or fairness. The impression, however, that what these components lead to, whether separately or taken together, is always in conformity with the law, especially a positive (enacted) one, is misleading.2 Pursuant to the proposed definition, law and culture (tradition) may overlap, but, equally, each of them may pull in totally different directions.
Specifically, the first sphere in which tradition and culture can permeate the law is the process of law-making. Tradition and culture, if taken into account by framers of legal acts, may be reflected in the shape of enacted rules. Next, tradition and culture are able to affect the law during its application. That pertains, in particular, to situations in which the scope of judicial discretion allows judges to choose between different interpretations of a given statutory provision or among two or more precedents with binding force. The same thing applies to leeway that a judge has when, in order to pass a judgment, she or he weighs countervailing principles or standards (norms prescribing attainment of goals, or protection of values, that contradict each other).
Incidentally, tradition and culture as understood above-that is, in a potential relation to a particular community-seem to be intrinsic to human beings and thus constitute a part of the physical world, not the eternal world of immutable ideas or norms. Otherwise, perceiving culture/tradition as something dependent on the changing conditions in which people live, their current needs, or views that prevail amongst them at a certain moment in time, would be hard...