Law as a product of tradition and culture.

Brief idea of Laws historicity-

As Jarkko Tontti has recently pointed out in his Right and Prejudice (2004, p. 1-2),
one of the main defects of legal theory (Neo-Kantian) lies in its ahistorical
approach: both law and legal scholarship have been treated as phenomena
divorced from history. As a logical outcome of this way of thinking about law,
we can point to Kelsen’s legal positivism, his pure theory of law. Kelsenian
positivism, in turn, gives rise to and justifies the familiar figure of the omnipotent
legislator. But law and legal scholarship are thoroughly historical entities. They are
bound to the very past of the law, to its memory, to the conceptual and normative
resources transmitted from the law’s history.

Introduction

Culture is concerned with the intellectual, spiritual and creative aspects of

collective life. In simple words it can be described as, 'the totality of the basic
impulses of the social conscience'. (MC Setalvad).
What is Culture?

‘It is the sum total of values expressed through art, religion, literature, social
institutions and behaviour, the overt acts of individuals and mass action inspired
by collective urges.’ Its first characteristic is Continuity. A distinctive culture
comes into existence when people develop a continuous way of life. This is
expressed in many ways like common traditions and norms of conduct, common
institutions (marriage, family), common memory of triumphs achieved (Bharata
war fought at Kurushetra between the Pandavas and Kauravas). Example where
ever we go in India there are certain accepted norms of conduct. Social
conscience.
According to Abid Hussain, "culture is a sense of ultimate value possessed by a
particular society as expressed in its collective institutions by its individual
members in their feelings and attitudes and manners as well as significant they
give to material objects".
Tylor considers culture as that complex whole which includes knowledge, belief,
art, morals, law, custom and any other capabilities and habits acquired by man as
a society.
Bhikhu Parekh views that it is a historically created system of beliefs and
practice in terms of which a group of human beings understand, regulate and
structure their individual and collective life.
Culture partly consists of norms for, or standards of behaviour within and outside
the family, and its patterns range from habits of dress, diet and work to bodies of
customs, religion and typology of knowledge system. It designates a way of
life and stimulates emotion. At the basic level it is reflected in language, embedded
in ethnicity, morality and religion, and connected with human activities and
relations. In the above anthropological sense, it refers to a system of shared
meanings through which collective existence becomes possible.
With regard to Tradition, there are two concepts: a philosophical one and a
sociological-historical one. The contents of the philosophical concept of tradition
underlines the notion that all human acts of consciousness, all acts of
understanding, interpretation and cognition are bound to tradition; we humans
never approach the object of our cognition or interpretation with a tabula rasa
consciousness but always through the conceptual and interpretative means
provided by a specific tradition. “Tradition” in this sense is equivalent to the
preconceptions (pre-understanding) and prejudices which are necessary in
order for the process of understanding and interpretation to be launched. We draw
this “pre understanding” from the culture into which we have been “thrown”, in
which we have grown up and internalized our fundamental conceptions of the
world. On the other hand, according to the historical-sociological concept of
tradition they are something distinctive to pre-modern or “traditional” societies.

Tradition means commitment, not only to time, to the past, but also to a place.
Traditions are local traditions which divide people into friends and foes, into
insiders and outsiders; they define personal and collective identities. In conclusion,
it is seen that all legal practices are bound by tradition, by the law’s history, and
that, consequently, all legal practices also play their part in the transmission
of legal tradition. This also concerns the legislator: the past is the primary
temporal dimension even for the legislator.-Law and Social Transformation Going
beyond culture's potentiality of keeping individuals or even community tightly
bound by its behavioral patterns, Mathew Arnold thought of attainment of
perfection in or through cultures a desirable social practice. Arnold viewed that
culture consists in balanced cultivation of all faculties of man: intellect and
emotion, intuition and self-perception; and its perfection involves fine tuning of
human.