Legislators pursue legal reform with the aim of achieving or furthering some identified public policy objective. Traditionally, legal scholars tried to assure that formal statutory provisions and rules of court produced the desired outcomes, and that deviations from such outcomes were mere errors. On the other hand, law and society scholars have asserted that this view ignores some fundamental explanations for the wide deviation between the law on the books and the law in action.
These scholars point to numerous studies that indicate substantial gaps, and at times a total disparity, between the formal substantive rules on the books and the actual implementation of the rules on the ground. In addition to the disparity between the formal laws and the laws in action, these scholars note the important, and at times, dramatic variations in the implementation of the law from one locale to another, despite the similarity in formal rules.
Law and society scholars attribute some of the disparity between the formal laws and the laws in actions, as well as the substantial local variations in the implementation of the laws, to the influence of legal culture. A legal culture is a set of “ideas, attitudes, beliefs, expectations, and opinions about law.” Scholars have distinguished between external legal culture and internal legal culture. External legal culture is based on the set of ideas, attitudes, values, and beliefs that people in the population at large hold about the legal system. Internal legal culture is based on the perceptions and expectations shared by lawyers, judges, and other officials about the legal system.
Researchers sometimes use legal culture to explain apparent disparities between formal laws and the actual implementation of the laws on the ground. For example, one recent study found ambivalent feelings among Taiwanese about the values of formal and distant legal institutions, as well as the Taiwanese people’s well developed informal relationship based financing arrangements have led to almost a complete ignorance of the formal laws in the area of commerce. In another study, the author examined the extent to which a reform in the Norwegian law aimed at improving the status of housemaids had any practical impact.
The author found that no more than one tenth of the sampled relationships showed complete conformity to the demands of the new law. The author attributed some of the disparity between the law on the books and the law in action to the strong continued influence of embedded customs and norms that dictate the terms of employment of housemaids in Norway.
Other empirical studies have suggested that legal institutions and legal culture may not only explain the disparities that exist between the laws on the books and the laws in action, but also explain the dramatic variances in the implementation of the laws between different locales. For example, one researcher compared the Netherlands with the German province of Nordrhein Westfalen, which lies just across the border and whose population is culturally similar to that of the Netherlands.
The formal law of the two jurisdictions is also similar, but there are significant differences in the use of the law and the rate of litigation. The author attributed these differences primarily to Dutch institutional arrangements, which provided free legal advice much more generously to people at the lower end of the economic scale, and to other cultural and institutional factors.
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