legal culture as a tool for legal analysis stressed at various times in history. In the seventh century, Isidor of Seville, a leading Iberian cleric, noted that good laws were those adapted to local conditions and customs: ‘A law should be honourable, just, feasible, in agreement with nature, in agreement with the custom of the country, appropriate to the time and place’.3 The same idea was later expressed by Montesquieu inDe l’esprit des lois (1748), where he, like Isidor before him, advised the lawmaker to proceed in accordance with the local natural and cultural conditions. Laws, he wrote, Montesquieu was a forerunner of the nineteenth century’s German Historical School of Law, which linked ideas of national character and law.5 Unsurprisingly, then, it was when applying ahistorical perspective to law that legal culture first came into its own. In Norway, for example, the legal historian Absalon Taranger first referred to legal culture in his doctoral thesis on the law of possession from 1897.6 He also used the term in an article on local customs published in 1901, and gave five lectures ‘On the Legal Culture of our Ancestors’ in 1902.7 It would be a couple of decades, though, before legal culture would be used in Norway as a social and comparative context.8 And more importantly, in all these cases the references to legal culture went unexplained. Legal culture was merely a label put on legal phenomena that could be observed but not easily 3 The Etymologies of Isidor of Sevilla (Cambridge: CUP, 2006), 121 no. xxi. 4 Montesquieu, The Spirit of Laws, tr. Thomas Nugent (Kitchener, Ont.: Batoche, 2001), 23, 246. 5 See Roger Cotterrell, ‘Comparative law and legal culture’, in Mathias Reimann et al. (eds.), The Oxford Handbook of Comparative Law(Oxford: OUP, 2019), 714–15. 6 Absalon Taranger, Den norske Besiddelsesret indtil Christian V’s norske Lov(Kristiania [Oslo]: 1897), 57. 7 Absalon Taranger, ‘Bondens Sædvanerett i Telemarken og Nedenes’, Nedenæs Amtstidende, 24 Aug. 1901: ‘nationale retskultur’; Bergen Aftenblad, 18 Dec. 1901: ‘om vore Fædres Retskultur’. 8 See Fredrik Stang, Rett og Samfund(Oslo: Aschehoug, 1931), 17; Erik Solem, Lappiske rettsstudier (Oslo: Universitetsforlaget, 1933), 282 123 should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives … they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to the inclinations, riches, numbers, commerce, manners, and customs.4
RkJQdWJsaXNoZXIy MjYyNDk=