Sages, Savages, and Other Speech Act Communities: Culture in Comparative Law

This Article re-examines the possible utility of the concept of culture in comparative law. It reviews some limits and misuses of the concept of culture and introduces a components approach to using it in comparative analysis. First presented at a Symposium inspired by Laurence Tribe’s The Invisible Constitution, the Article takes up a key question emerging from Tribe’s work: How does a constitution constitute? Two conceptual tools from anthropology and sister disciplines, performative speech acts and performance theory, lend insight into how discourse produces literal meaning and, in parallel, produces and reproduces speech act communities.

Having introduced a components approach to undertaking comparative work, the Article then suggests putting the pieces back together; to demonstrate how a holistic treatment of culture might be deployed in larger projects, the Article reviews one against racism and another against ideology-based assertions of group superiority. With a more analytical look at the work of “constituting” and with new tools for studying it, the Article concludes that the concept of culture can facilitate comparative analysis not only between different national jurisdictions, but also between different speech act communities (like law and religion) within a given jurisdiction.