EPISTEMIC STUDY OF LAW IN DIFFERENT CULTURES

ESTUDIO EPISTÉMICO DEL DERECHO EN DIFERENTES CULTURAS

Jesús Armando Martínez-Gómez¹

E-mail: jesus.armando.martines@uaq.mx 

ORCID: https://orcid.org/0000-0003-2593-3248 

Karla Elizabeth Mariscal-Ureta¹

E-mail: karla.mariscal@uaq.mx 

ORCID: https://orcid.org/0000-0002-9340-8966 

¹ Universidad Autónoma de Querétaro. México.

ABSTRACT

The objective of this article is an analysis of how law adapts to the particularities of each society, based on the conceptions and perspectives of the legal systems of different cultures. It is essential for the scientific community to contrast that the law reflects the culture of each society and that as society advances it is subject to changes or modifications. The method used is based on analysis-synthesis, inductive-deductive, with a descriptive representation based on an extensive bibliographic search that allows conclusions to be reached in its documentary analysis. As a result, the study of law is approached from an intercultural perspective to better understand the different conceptions of legal systems at a global level.

Keywords:

Law, epistemology of law, culture.

RESUMEN

El objetivo de este artículo es un análisis de cómo el derecho se adapta a las particularidades de cada sociedad, a partir de las concepciones y perspectivas de los sistemas jurídicos de distintas culturas. Es fundamental para la comunidad científica contrastar que el derecho refleja la cultura de cada sociedad y que a medida que la sociedad avanza está sujeto a cambios o modificaciones. El método utilizado se basa en el análisis-síntesis, inductivo-deductivo, con una representación descriptiva a partir de una búsqueda bibliográfica extensa que permite en su análisis documental llegar a conclusiones. Como resultado se aborda el estudio del derecho desde una perspectiva intercultural para comprender mejor las diferentes concepciones de los sistemas legales a nivel global. 

Palabras clave: 

Derecho, epistemología del derecho, cultura.

INTRODUCTION

In a world where legal norms and principles are constantly questioned and reinterpreted, understanding how knowledge is produced and validated in the field of law becomes a crucial task. This study not only addresses the intrinsic characteristics of law as a science, but also explores its interaction with culture in its different phases and characteristics. In this sense García & Ceballos (2019), reveal, the scientific community stresses the importance of verifying that law is a reflection of the culture of each society and that, as it evolves, it is also subject to transformations. Therefore, conversations about legal epistemology, both in universities and in professional practice in the face of complex realities, seem to lack relevance. However, in our opinion, these discussions should be renewed to redirect a path that does not seem clear, especially regarding the ideal of law and its practical application.

From the position of Aguirre & Pabón (2020), law, as a branch of the social sciences, has been in a constant debate between the positivist approach and the hermeneutic approach regarding its epistemological status. Beyond this controversy, establishing a specific object of study that draws on the contributions of other disciplines makes it possible to understand phenomena and generate new theories and knowledge. This, in turn, supports the defense of the rigorousness and scientificity of law.

Within this framework, it is emphasized that legal epistemology faces several challenges in judicial practice that affect its implementation and acceptance. For Aguirre & Pabón (2020), they are nothing more than, resistance to change, judicial practice has traditionally focused on normative and procedural approaches, which generates resistance to adopting critical perspectives that question these norms. Critical legal epistemology proposes an interdisciplinary approach that integrates diverse methodologies, but this change may be seen as a threat by those accustomed to traditional methods. 

In short, jurists face conceptual, methodological and practical challenges in integrating culture into law. The lack of consensus on the definition of culture, the difficulty of distinguishing between legal and cultural norms, the adaptation of cultural rights to the legal model, and interdisciplinary openness are some of the main challenges they face. Overcoming these obstacles is fundamental to achieve a richer and more nuanced understanding of law as a social and cultural phenomenon.

METHODOLOGY

The method used is based on analysis-synthesis, inductive-deductive, with a descriptive representation from an extensive bibliographic search that allows in its documentary analysis to reach conclusions. Therefore, the research focused not only on the search for books detailing the topics previously argued, but also on the study and emphasis of several types of bibliographies that allowed the author to make the pertinent descriptions before the different positions assumed and adopted by the scholars who investigated everything related to these contents, their conceptions, valuations and each of the contributions that they bequeathed throughout history, thus bringing new knowledge to this research and contributing to a better analysis of law and culture. As a result, the study of law is also approached from an intercultural perspective to better understand the different conceptions of legal systems at a global level. 

DEVELOPMENT

Several academic spaces have been fundamental in promoting research in legal epistemology, fostering the creation of a united community of researchers in this area of knowledge in Latin America, and facilitating an enriching exchange between Latin American jurists and Anglo-Saxon and European colleagues interested in topics related especially to evidence. From this area, it is possible to develop ideas that allow systematizing its essence and content. 

In this regard, authors such as Herdy (2014); Páez (2014); Amaya & Gama (2014); González (2020); Aguirre, & Pabón (2020); Medina & Luna (2022); López (2023), reflect that in recent years several authors have contributed significantly to the epistemic studies of law, exploring various dimensions of legal epistemology. In turn, the work of Paez (2014), focuses on the epistemology of testimonial evidence in law, considering the criteria of relevance, credibility and probative force. He also analyzes how these factors affect the evaluation of testimonial evidence and addresses the tension between reductionist and anti-reductionist approaches in the philosophy of testimony.

In his research Herdy (2014), challenges the notion that judges decide questions of fact based solely on their personal cognitive states. He introduces the concept of epistemic dependence, which explains the relevance of the testimony of others, including experts, in legal decision making. According to Amaya & Gama (2014), the effort to bring the literature on evidence in law and epistemology into contact with the aim of exploring the possible contributions that epistemology and, especially, social epistemology may have for reflections on evidence in law is representative. 

From the perspective of López (2023), in his contributions, he addresses the evolution of legal epistemology, highlighting the need to understand how information has been processed in law through different epistemic paradigms. This includes an analysis of how these transformations affect the structure of criminal procedural systems and the understanding of evidence and truth. For his part, González (2020), in his writings, explores the relationship between general principles of law and their epistemological function, arguing that these principles are fundamental for the cohesion and operability of the legal system. His approach highlights the relevance of historical, political and ethical elements in the construction of legal knowledge and therefore in epistemic evolution.

In this sense, the position of Aguirre & Pabón (2020) is understood, when they state that legal epistemology, in this sense, consists of two projects: One approach is descriptive in nature, which focuses on identifying which of the current rules foster or facilitate truth and which hinder it. The other approach is normative in nature, as it seeks to suggest modifications to the existing rules in order to alter or eliminate those that represent significant obstacles to the search for truth.

Therefore, it is assumed from the studies of these authors that they have contributed to a growing interest in the epistemology of law, especially in the Latin American context, where recent procedural reforms have driven the need for a deeper analysis of the epistemological foundations of law and its practical application. It also corroborates the idea that the evolution of legal epistemology in recent years has been marked by a critical and multidisciplinary approach, reflecting a change in the way knowledge is approached within the field of law. 

It is advisable to outline the main trends that have been developed in this field and that, due to their impact and importance, require study, for which different approaches and points of view are also noted. Aguirre & Pabón (2020) describe them as Critical and Methodological Approaches, Interdisciplinarity and New Perspectives, Practical Relevance and Procedural Reforms, Academic Events. 

From this point of analysis for the authors Aguirre & Pabón (2020), the Critical and Methodological Approaches assume a Critical Legal epistemology, based on the need to open legal research to interdisciplinarity, incorporating multiple methods and perspectives. This approach focuses on the need for an epistemology that is not only rigorous, but also broad and creative. But it also represents different Levels of Analysis; As a theory of legal knowledge of law itself; As a theory of legal knowledge in the context of legal practice; As a theory of legal knowledge from law, which includes research methods and approaches.

Interdisciplinarity and New Perspectives: take into account the integration of cognitive sciences, this has allowed a more robust and grounded approach in the understanding of evidentiary processes and their validity. In addition, the development of new theories where authors have proposed approaches such as legal constructivism, which seeks to restore the understanding of positive law and its impact on the social construction of reality. This approach emphasizes the importance of social construction processes and intervention in these processes (Aguirre & Pabón, 2020).

The aforementioned Aguirre & Pabón (2020), end by expressing, that Practical Relevance and Procedural Reforms as an approach take into account the Impact of Legal Reforms from assuming that the discussion on legal epistemology has gained practical relevance in the context of procedural reforms in several Latin American countries. These reforms have prompted a deeper analysis of the validity of evidence and judicial procedures, contributing to a better understanding of the epistemological aspects of law. As well as, the Academic Events that are nothing more than the creation of forums and seminars that encourage dialogue between jurists from diverse traditions, promoting a cohesive community that explores epistemological problems in law. This exchange leads to the development of new perspectives in legal research.

In summary, it can be inferred that legal epistemology has evolved towards a more critical and multidisciplinary approach, integrating diverse perspectives and tools that enrich the analysis of law and its practice. This change not only seeks to understand legal knowledge, but also to improve the practical application of law in contemporary contexts.

From another point of view of analysis, according to Moreira (2008), the main challenges of contemporary law lie in recognizing and understanding a new legal axiology, which implies replacing the paradigms of the liberal system and rediscovering the classes and peoples oppressed by that law. This is related to a question of interpretation, as well as to the need for an axiological openness and a renewal of existing paradigms. Likewise, Moreira (2008), points out that if we continue to observe Law from an evolutionist perspective, it will be complicated to dismantle the liberal ideology that sees individuality as the sole holder of rights. The inclination to consider the individual as the maximum guarantee is as detrimental as the idea of collectivizing all rights.

Consequently, critical legal epistemology faces significant challenges in its integration into judicial practice, from resistance to change and the need for validation of new perspectives, to combating counter-epistemic effects and the inclusion of critical approaches. These challenges require a concerted effort to transform both the theory and practice of law.

Everything analyzed makes us reflect on the relationship between law and culture, an aspect that has been the subject of study in various disciplines, including anthropology, sociology and law itself. An evident interconnection, which authors such as Hendy (2014); Paéz Benalcázar (2014); Fregoso (2017); and Gelacio & Duque (2019), affirm that law cannot be understood in isolation, but is a cultural phenomenon that reflects and is nurtured by the norms, values and practices of a society. According to various studies, law is constructed within a specific cultural context, which means that legal norms are influenced by the beliefs, customs and traditions of the community. In this sense, law acts as a regulator of social relations and, in turn, is shaped by the cultural evolution of humanity. 

In this same line of thought Moreira (2008), argues that culture, as a key concept in law, must reestablish a framework that allows the legal flexibility necessary to protect the rights of minority groups, native peoples and any form of diversity, ensuring their equality. However, he states that it is essential to define culture from the point of view of law without falling into ethnocentrism, which is essential to accept differences and adapt the new legality to a plural and egalitarian society. From his point of view Moreira (2008), emphasizes that law needs a deep structural change that integrates all its areas under new principles.

Therefore, what has been explained so far leads us to understand that culture significantly influences the interpretation of laws in different ways, reflecting, in addition, the beliefs, values and practices of a society. And one of the aspects that corroborates this is the cultural context. From this conception, Sevilla (2020) also states that law is a cultural product that develops within a specific social context. Legal norms not only regulate behaviors, but also reflect the cultural identity of a community. The interpretation of laws, therefore, is impregnated with the customs and traditions that characterize that society. This is evidenced by how different cultures may have different approaches to legal concepts, such as justice and fairness, leading to varied interpretations of the same laws in different contexts. 

In this case from the studies of Fregoso (2017); and Sevilla (2020), the distinction between legal norms and cultural norms is interpreted as fundamental to understanding how culture affects legal interpretation. Which suggests that the understanding and application of the law are influenced by popular culture and social norms, which may lead to interpretations that align more with cultural expectations than with the legal text itself. 

However, as mentioned somewhat in the article, in line of thought with Fregoso (2017), the inclusion of the term culture in legal systems poses challenges, as its definition can vary widely. Jurists often seek a definition that fits a specific legal context, avoiding broader definitions that could dilute the content of laws. This challenge highlights the need for a legal systematization that adequately contemplates cultural diversity and its impact on legal interpretation. 

In this sense, it is understood that culture plays a crucial role in the interpretation of laws, affecting both their application and their evolution. The interaction between law and culture is complex and multifaceted, requiring an approach that recognizes cultural diversity and its influence on legal systems. This allows for a richer and more nuanced understanding of law as a social and cultural phenomenon. The integration of culture into law is evident in a number of historical examples, from the influence of religion on canon law and Islamic law, to the adaptation of civil codes and the inclusion of cultural rights in international treaties. These cases underscore the interconnection between law and culture over time.

In sum, the concept of culture has evolved in the last decade into a more complex and nuanced understanding that recognizes the diversity and interconnectedness of human experiences. Contemporary debates focus on the need to avoid generalizations and the importance of considering the particularities of each cultural context.

In the last ten years, the perception of culture has evolved significantly, influenced by various social, technological and academic factors. For Fernández (2009), one of the most notable changes has been the way in which globalization has affected the understanding of culture. Although there is a perception that globalization leads to cultural homogenization, many studies suggest that it has actually given rise to new forms of cultural diversity. Cultures are being reconfigured in a supracultural framework, where cultural variants are not seen as exotic in a remote sense, but as part of a broader web of cultural interactions.

Consequently, the perception of culture has shifted towards a more inclusive and dynamic approach, recognizing the diversity and complexity of cultural experiences. Globalization, contemporary anthropological approaches, and the interaction between culture and biology have been instrumental in this evolution, promoting a deeper and more nuanced understanding of what it means to be human in a diverse cultural context.

According to Garcia (2018), one of the main challenges is the very definition of culture, as it is a complex concept open to diverse interpretations. Jurists often seek a definition that fits a specific legal context, avoiding broader definitions that could dilute the content of laws. The lack of a clear and consensual definition of culture in the legal field poses difficulties for its practical application. For his part, García (2018), reflects on the current relevance of the cultural dimension of law, seeking to identify which interpretation of culture is best aligned with a critical conception of law that is committed to human rights. Medullar aspect in society.

From Moreira's (2008) point of view, he refers that traditionally, law has been seen as a self-sufficient field, resistant to the incorporation of methods and categories from other disciplines. Integrating culture into law requires an interdisciplinary openness that allows jurists to dialogue with other academic traditions. This implies a challenge for the traditional legal mentality, which must abandon the dogmatic mold to delve into social complexities.

Within this reflective context, it is assumed that jurists face conceptual, methodological and practical challenges in integrating culture into law. The lack of consensus on the definition of culture, the difficulty of distinguishing between legal and cultural norms, the adaptation of cultural rights to the legal model and interdisciplinary openness are some of the main challenges they face. Overcoming these obstacles is therefore fundamental to achieving a richer and more nuanced understanding of law as a social and cultural phenomenon.

The integration of culture into law has manifested itself throughout history in various contexts and examples. Canon law, which regulates the life of the Catholic Church, is a clear example of how religion has influenced the development of law. Similarly, the Koran acts as a fundamental text that guides not only the spiritual life of Muslims, but also the law in many Islamic countries. In the field of civil law, many legal codes have been influenced by the cultural traditions of the societies that adopt them. Historically, the way law has been studied has evolved to include a cultural perspective. This transformation in the historiography of law makes it possible to observe how legal norms reflect and are influenced by cultural dynamics.

Authors such as Moreira (2008); Fernández (2009); and García (2018), justify in their works that the integration of culture in law is evident in various historical examples, from the influence of religion in canon law and Islamic law, to the adaptation of civil codes and the inclusion of cultural rights in international treaties. These cases underscore the interconnectedness of law and culture over time.

However, it is clear from the study that legal culture has evolved throughout history in response to social, political and cultural changes. From its roots in religion and morality to its development in a pluralistic framework that recognizes cultural diversity, legal culture continues to reflect the society in which it is applied. This process demonstrates that law is not only a set of rules, but also an expression of the values and beliefs of a community at a given time. Essentially marking the social context as a fundamental dimension in the relationship of these categories.

For Urbina (2020), new information and communication technologies have played a fundamental role in cultural dissemination and exchange. These tools have allowed cultures to share their expressions and traditions to a global audience, which in turn has enriched the understanding of culture in a broader context. This universal access to cultural diversity has fostered a renewed dialogue between different civilizations and promoted the idea that all cultures possess intrinsic value.

Consequently, the analysis leads the researcher to understand that cultural diversity has transformed the perception of culture, promoting a more inclusive and dynamic understanding. Globalization, contemporary anthropological approaches and the impact of new technologies have been instrumental in this evolution, highlighting the importance of cultural diversity as a valuable resource for humanity as a whole. This evolution reflects a shift towards a greater appreciation of the multiple identities that make up the human experience.

Diversity seen from Hamel's (2001, cited by Moreira, 2008) evaluative prism, distinguishes between “multiculturalism” and “pluriculturalism”: in the first perspective, diversity is recognized, even as a source of certain rights, but is seen as a problem or an obstacle to development. In contrast, in the second perspective, the most important sectors of society not only recognize difference as a right of indigenous groups and individuals, but also value it as a socio-cultural resource that enriches the State and the nation as a whole.

There are several examples of successful integration of cultures in different countries around the world. Some of the most prominent are: Canada is known for its multicultural approach, where diversity is encouraged and the contributions of all cultures are valued. The Canadian government has implemented policies and programs to promote integration, such as the Multicultural Canada Act and the Multiculturalism Program. This has allowed communities of diverse origins to coexist harmoniously and contribute to the cultural richness of the country.

In the last ten years, America has seen a notable increase in the recognition of new rights, such as pluriculturality, diversity and linguistic rights, which signals a change of paradigms. These rights, based on equality, alter legal perceptions, challenge the colonial heritage and challenge the inflexible conception of evolutionism in law.

Australia is also an example of successful cultural integration. Through its policy of multiculturalism, the Australian government promotes respect for and inclusion of all cultures. Programs such as the Settlement Assistance Program help newly arrived immigrants integrate into Australian society. Cultural diversity is celebrated and seen as an asset to the country.

The Netherlands is known for its pragmatic and tolerant approach to cultural diversity. It has succeeded in integrating large immigrant populations through integration policies that combine respect for cultures with language training and the promotion of shared values. Cities such as Amsterdam are vibrant examples of the integration of multiple cultures. These examples demonstrate that, with political will, appropriate policies and a mutually respectful approach, it is possible to successfully integrate people from diverse cultures into a society. Cultural diversity can be an asset when managed appropriately. The impact of law on culture in 21st century countries is multifaceted and manifests itself in various dimensions, especially through human rights and cultural rights.

Therefore, from this own source Michelini (2020), it is inferred that human rights have evolved significantly, reflecting common practices among states and the need for legitimization at both the national and international levels. This evolution has led to a sectorialization of rights, seeking to protect the specific interests of diverse groups, which in turn influences the cultural identity of societies. The culture of human rights refers to how these rights are translated into values and norms that guide social behavior, although their effective implementation varies considerably between different cultural and political contexts.

Furthermore, for Gándara (2019), the recognition and promotion of human rights are fundamental to address inequalities and foster a culture of inclusion and respect. However, there is a gap between theory and practice, especially in contexts where law can be used for both liberation and oppression. This implies that human rights discourse can be a field of power struggle, where its interpretation and application may vary according to the interests of dominant groups.

Calvo (2014), for his part, refers to the fact that the promotion of cultural policies that respect and promote cultural rights is essential to build more inclusive and equitable societies. However, the effectiveness of these policies depends on their implementation and the socio-political context in which they are developed. Lack of attention to cultural rights can result in social exclusions and tensions, underscoring the need for an inclusive perspective in policy formulation.

In the view of this research, law in the 21st century has a significant impact on the culture of countries, both through the promotion of human rights and the protection of cultural rights. The way in which these rights are interpreted and applied can strengthen or weaken social cohesion and cultural identity, depending on power dynamics and specific contexts. It is therefore crucial to continue to reflect on the role of law in culture and to seek ways to ensure that rights are translated into lived realities for all individuals. Moreover, human rights, especially cultural rights, are intrinsically linked to cultural sustainability. The protection of cultural diversity, access to education and participation in cultural life are essential to building more inclusive and sustainable societies in the 21st century.

The research assumes the criterion of Guachetá & Rojas (2020), when expressing that legal epistemology refers to the study of knowledge in the field of law, analyzing its nature, validity and methods. This approach is crucial to understand how norms are formed and how they relate to cultural realities. Cultural diversity demands an analysis that recognizes the multiple forms of knowledge and the different legal traditions that exist in the world. The inclusion of diverse perspectives in the epistemology of law allows for a more enriching dialogue and a better adaptation of laws to the needs of specific communities.

From a broader perspective, it is important to consider that law manifests itself as a constantly changing system that must adapt to the particularities of each society, reflecting its values, traditions and specific needs. This adaptability is shown in the diverse interpretations and approaches to legal systems in different cultures. In this sense, the present research points out that law regulates social interactions and acts as an instrument for social change, reflecting the reality of each context. Its creation and application are shaped by social forces, and in societies with a strong human rights culture, which focuses on its defense and promotion.

Consequently, legal systems vary according to cultural traditions; in societies with strong religious roots, such as some Islamic communities, the law is integrated with religious principles, while in more secularized societies, it is more flexible and adapts quickly to new realities. The adaptation of law to new laws is an essential process that involves formal changes and an evaluation of its congruence with current social practices.

Moreover, the constant social and technological transformation requires an update of the law to maintain its relevance, especially in extraordinary situations that test its flexibility and pose dilemmas between public safety and individual rights. Finally, it should be noted that the adaptation of the law to social particularities is a complex process that reflects its effectiveness and legitimacy, being crucial to maintain justice and order in a constantly evolving society.

CONCLUSIONS

Cultural diversity faces significant challenges in the current context, including cultural conflicts, racism, homogenization due to globalization, and structural inequalities. Addressing these challenges requires a collective commitment to foster respect, inclusion and promotion of all cultures in society.

Culture permeates legal codes through the influence of religion, local customs, customary law, recognition of cultural diversity and the evolution of societies. This demonstrates the close relationship between law and culture throughout history.

The epistemological study of law in diverse cultures has led to conceiving it as a cultural phenomenon, adopting interdisciplinary approaches, questioning legal positivism, and highlighting the importance of context. This has enriched the understanding of law and opened new research perspectives. It also provides theoretical and methodological tools that are essential for understanding and addressing cultural diversity in the field of law. By promoting a pluralistic and inclusive approach, it facilitates the creation of a legal system that reflects and respects the cultural realities of the communities it serves.

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