Torts and Notions of Community
More Observations on Units of Legal Culture
KEEBET VON BENDA-BECKMANN
David Nelken's discussion of legal culture raises important questions about the criteria for selecting appropriate units of analysis for comparative study. To that astute discussion I add some observations about the concept of community, which appears to be one of the most prevalent units of analysis in discussions of legal culture and American tort law. In fact, many of the American participants in the discussions and presentations that gave rise to this volume referred to the concept of community, yet it was rarely problematized. I suspect that there is a shared but implicit understanding among American scholars that communities are at the foundation of (tort) law and that it is clear what a community is, or rather, what the relevant community is when discussing tort law issues. If examined more closely, their concept of community is sociologically incoherent. “Community” can actually mean quite different things rather than having the unitary (and normatively driven) meaning that is assumed in these discussions about American tort law and legal culture.
In order to understand why the normative concept of community has trumped a more anthropological concept, Roger Cotterrell's (1995) discussion of the legal philosophical foundations of English and American law is helpful, since it suggests the importance of the ideology of community for American legal scholars and practitioners, Cotterrell argues that the English system is characterized by the governing force of law, which he calls “imperium,” while the American system is based on the assumption that it is communities with shared values and interest that are at the basis of law. He discusses the implications of the deep communi tarian undercurrents in American law for the American legal profession. While