Comments on Roger Cotterrell\u27s Essay, \u27The Struggle for Law: Some Dilemmas of Cultural Legality\u27

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 thank you 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. 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, second, that multiculturalism renders inadequate, for different reasons, both Weberian and non-positivist or non-instrumental accounts of law’s liberal aspirations, 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, 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. I am sympathetic to all three prongs of this project. I agree entirely that jurisprudence has not well theorised the cultural; I agree that some of the strains in the general facade of liberal legalism are a result of multicultural forces and aspirations; and I am happy to share in the call for legal doctrine that is civil and respectful. So in these comments, I will just voice some worries about the overall thrust of the project, and offer some friendly amendments. The worries are threefold: the first is jurisprudential, the second is political and the third might best be called aspirational