Fault Lines: Tort Law as Cultural Practice

By David M. Engel; Michael McCann | Go to book overview

CHAPTER ONE
Law, Liability, and Culture

DAVID NELKEN

Few legal domains are as obviously promising for “cultural” analysis as torts, revolving as they do around questions of risk, fault, blame, responsibility, and the limits of the duty to care. Cause and effect can be defined and connected in a wide variety of ways, and attributions of such linkages are shaped (collectively and individually) by where one wants blame to end up. The contributions to this volume show that inquiries into tort law and culture can cover a wide range of topics concerned with culture in tort law, tort law in culture, and tort law as culture. Cultural approaches can provide insight into the role of this kind of law, and studies of different ways of dealing with liability in different societies can highlight their cultural differences.

Notoriously, however, the term culture can be used in many ways, ranging from referring to what is most taken for granted to that which is most manipulated. When we are faced with such protean terms as law and culture, the variety of meanings and possible interconnections is almost too large to be mapped. My interest here is only to consider how far the term legal culture can be used to add conceptual clarity to this effort to map some of the relationships between law and culture. Some of the contributors actually say that this is their aim: Lynn Mather, for example, tells us that “Tobacco litigation provides an excellent lens for comparative research on legal cultures.” But other contributions may also provide us with useful illustrations for this purpose even where the concept is not referred to explicitly. Legal culture can be relevant to their attempts to disclose the dif ferent and partially competing cultures that are reflected in any given system of

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