Modern Law and Otherness – The Dynamics of Inclusion and Exclusion in Comparative Legal Thought (Edward Elgar 2019), by Veronica Corcodel

Traditional comparative law has been subject to a variety of critiques and, by now, has been surpassed by new and eclectic approaches. Indeed, over the past two decades or so, the increasing interest in debates on globalisation and Eurocentrism brought new vigour to the field. This book joins these efforts by offering a postcolonial perspective on comparatists’ own representations of ‘non-Western’ societies. It pushes forward the few existing critical comparative approaches that draw on postcolonial insights, while rereading the Euro-American ‘masters’ of the field through new lenses.

Postcolonial studies encompass a variety of interdisciplinary and multidisciplinary approaches, but they have in common a concern over the legacies of colonialism in contemporary processes of knowledge production and power relations. Perhaps one of the most influential works in postcolonial studies has been Edward W. Said’s Orientalism, first published in 1978. At least two of Said’s insights are central in ‘Modern Law and Otherness’: the understanding of ‘non-Western’ societies as ontologically unstable representations and the significance of colonial or imperial concerns in processes of knowledge production. As Said puts it, Western (liberal) imperialisms were consolidated and perhaps even driven by ideas about non-Western societies as being inferior to its Western counterpart. These are politically significant representations that continue to cast shadow in various ways over more recent configurations of power and knowledge. In this sense, when such societies are portrayed as radically different, backward, non-civilised or underdeveloped, these ideas are deeply intertwined with Western history and more recent dynamics in power configurations.

The book analyses the works of some of the most important European comparatists in the field, including a few German scholars who emigrated to the United States.  It covers the period between the 1860s and the early 2000s. The main objective is to understand better the ways in which these works have constructed the ‘non-West’ and what the implications of these constructions are. Following a brief introductory chapter, Chapter 2 focuses on the theoretical framework and the book’s contribution to existing debates in comparative law. Building on Said’s insights, it elaborates on the ways in which the knowledge produced by comparative legal works can be understood as politically meaningful representations. Pushing forward the few existing critical approaches in the field that build on postcolonial insights, the chapter also emphasises the importance of leaving space for ambivalence. For these reasons, it foregrounds the importance of the concepts of ‘inclusion’ and ‘exclusion’, which serve as analytical lenses throughout the book.

A few similar analyses – on which this book partially draws – have been made in relation to international law. Sundhya Pahuja, for instance, has shown how the field of international law is permeated by tensions between promises of inclusion and exclusionary claims.[1] As a field that embraces universality, its promise of inclusion stems from ideas of becoming the same as the posited universal, but an exclusionary dynamic simultaneously arises from the universalisation of Western values. Comparative law puts more emphasis on the ‘particular’, at least according to some conventional wisdom. In this sense, its promise of inclusion arises from the idea that the knowledge produced by it recognises the particularities of foreign legal systems. At the same time, such promise is subsumed within claims of societies’ backwardness or inferiority, based on ideas or assumptions of a putatively universal evolutionary path.

The book shows that promises of inclusion appear throughout the field of comparative law, as each comparatist claims to provide a more accurate understanding of the analysed legal systems. This is also visible in their critiques of Western ideas of universality of natural law or of societies’ evolutionary path. Their promises of giving a better account of legal system’s particularities are however simultaneously subsumed within claims of backwardness, stemming from constructions of non-Western characteristics in ostensible opposition to the Western contemporary condition.

It is worth noting that such tensions between inclusion and exclusion are not conditioned by comparatists’ interest in studying the ‘non-West’. Indeed, some of them have rather sought to promote the study of Western legal features, but these were constructed in opposition to the non-West, especially through distinctions between civilised and uncivilised societies, modernity and tradition, or quasi-universal contract law and non-Western law. It is also worth noting that the tension sometimes also animates more positive representations of the non-West, understood as having reached, at least partially, the modern stage. Indeed, such ideas often assume that non-Western particularities can be recognised only if they become similar to the West.

After elaborating on the theoretical framework, the book examines more in-depth the works of some of the most important comparatists, understood as such by the field’s participants. Chapter 3 focuses on the nineteenth-century works of Henry Sumner Maine, often seen as one of the field’s forefathers or sometimes as one of its founders. Analysing more specifically his representations of India, the chapter foregrounds the interplay between ideas of universality and particularity, and the ways in which they produce a tension between inclusion and exclusion. Maine positioned India at an inferior stage of development within a putatively universal evolutionary scheme under which all societies allegedly moved from “status to contract”.[2] Western societies, under this scheme, were understood as “progressive” because of their attachment to laissez-faire liberal ideology. Such exclusionary representations stand in tension with Maine’s critiques of ideas of universality of liberal legal ideas, as well as his critiques of British imperial policies for their failure to recognise India’s particular form of social organisation. The chapter also shows that, at the same time, Maine advanced justifications for such reforms precisely because laissez-faire liberalism allegedly constituted the most advanced stage in societies’ evolution. Ultimately, the critical potential of Maine’s promises of inclusion is considerably limited by a taken-for-granted notion of modernity paired with ideas about what constitutes a superior civilisation.

Chapter 4 examines the works of early twentieth-century comparatists, especially Raymond Saleilles, Ernst Rabel, Roscoe Pound and Edouard Lambert. These scholars criticise many features of the liberal legal order defended by Maine but not altogether break away from them. Indeed, arguing for a ‘social’ conception of law, i.e., an understanding of law as responsive to changing social circumstances, they also endorse to some extent nineteenth-centuryideas. These include deductive thinking, certainty of legal relations and the distinction between private and public law. The ‘social’ incorporates – but is not reduced to – these elements and is posited as the most advanced stage in societies’ evolution.

The chapter shows how the works of these comparatists reproduce a representation of the non-West as backward, compelled to fit into the Western ‘social’ model for it to be recognised as modern or civilised. Somewhat paradoxically, they assume that the non-West should acquire the features of the nineteenth-century Western liberal legal order so that it can ultimately ‘socialise’ this very way of thinking. Under this understanding of societies, the non-West is often portrayed as backward. At the same time, these comparatists criticise certain ideas of universality and sometimes formulate critiques of Western practices or attitudes of domination. In this sense, they also promise inclusion of the ‘particular’. Lambert, for example, openly called his students to destabilise Western representations of Islamic law.[3] Overall, however, early twentieth-century comparatists’ promises of inclusion, while going further than those of Maine, remain limited by unchallenged notions of civilisation and modernity, which idealise the Western path of development.

Chapter 5 pursues with an analysis of post-World War II comparative works, especially René David, Alan Watson, Rudolf Schlesinger, Rodolfo Sacco, Konrad Zweigert and Hein Kötz. Under a seemingly more politically detached tone, most of these scholars distinguish themselves from unilinear evolutionary thinking. At the same time, however, they reproduce it in unacknowledged ways. Indeed, they continue to refer to modernity, now increasingly associated with the idea of economic development, assuming a model to be universally reached but already attained by Western countries. Some comparatists also advance more explicit ideas of societies’ path of progress. Alan Watson, for example, believes that the inferior stage of development is characterised by a correspondence between law and society, while a more advanced (Western) condition would allegedly show a disconnectedness between the two.[4]

Post-war comparatists’ position in relation to liberalism appears in a more concealed way, compared to the works of Henry Maine and early twentieth-century comparatists. However, they implicitly refer to liberal legal ideas – which they understand as existing in the West since the nineteenth-century – when defending or assuming a desirable Western-like transformation of the non-West. This contributes to the exclusionary representation of the non-West as traditional or underdeveloped. Post-war comparative works, however, also promise inclusion, especially when criticising evolutionary thinking, as well as attitudes or practices of Western expansion.

Finally, the concluding chapter provides some tentative thoughts on the possibility of engaging with the field’s promises in more productive ways. Most importantly, it invites for a critical approach to the concepts of modernity, civilisation, and economic development. Such concepts should be destabilised rather than taken for granted. Such destabilisation should go hand in hand with an acknowledgement of the constructive dimension of world legal systems and the futility of attempts of identifying more “authentic” characteristics. There is no “true story” of the West to be found, but a multitude of stories with different politically meaningful constructions. In this vein, comparatists’ ideas of universality and particularity are also representations that can be mobilised strategically. The crucial question is not how to choose between the two, but what meanings such ideas should have considering historical and more contemporary configurations of power in the world.

Posted by Veronica Corcodel (Nova School of Law)

[1] Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality, 250-6 (Cambridge University Press 2011).

[2] Sir Henry Sumner Maine, Ancient Law. Its Connection with the Early History of Society and its Relation to Modern Ideas (John Murray 1998).

[3] Edouard Lambert, Introduction in Mahmoud Fathy, La doctrine musulmane de l’abus des droits. Travaux du séminaire oriental d’études juridiques et sociales (Paul Geuthner 1913).

[4] Alan Watson, The Evolution of Western Private Law (The John Hopkins University Press 2001).