Introduction: Law, Culture, and the Legal Barbarian
Law is not part of culture; it is a consequence of culture. Law has typically been understood as an effect of a nation’s ethos or as the result of production relations. Law, it is commonly thought, is an epiphenomenon of culture. In reality, however, law is part of culture. It is one of the components of that cultural legacy that we both receive and build. Law, particularly modern law, is one of the elements that make up the web of meaning that constitute us. Law provides some of the categories that shape modern individual and collective identities. Categories such as subject of rights, property, borders, territory, citizenship, people, nation, linearity of history, and jurisdiction construct important parts of the narratives that give unity to the identities of individuals and collectivities immersed in modern culture. The power of law is primarily located in its capacity to construct particular subjects who inhabit a given geography and history.
The culture of modern law is constituted not only by a particular way of imagining the subject; it is also constituted by everything that the subject is not. The “other” of modern law is within modern law. The “other” of the law has also been constructed by law. In particular, it has been constructed by comparative law. This discipline, which paradoxically has been on the margins of modern legal communities, provides the narratives that construct the “other” of modern law’s culture. That “other” has usually been imagined by comparative law as the Asian, the Oriental, the colonial subject, or the legal barbarian. In this narrative, this “other” inhabits a precise imagined geography: Asia, the Orient, the colony or the Global South, and occupies a particular place in history: the primitive, the underdeveloped or the one who has no history. The “other” embodies all the negative characteristics that the “self” does not personify. In this way, modern comparative law controls what can be said about modern law. Insofar as it creates the conditions of possibility of the “other” it also creates the conditions of possibility of “self”.
Modern comparative law, therefore, revolves around the conceptual opposition: self/other. This conceptual opposition emerges and transforms in three particular moments of modern comparative law’s history. Modern comparative law emerges in the 18th century with what I would like to call “instrumental comparative law”, whose paradigmatic representative is Charles-Louis de Secondant, Baron de Montesquieu. It has its first great transformation in the 19th century with comparative legislative studies, which have as their most visible representative Henry Sumner Maine; and it mutates again in the 20th century with the emergence of comparative law as an autonomous discipline, which is represented paradigmatically in the work of René David, Konrad Zweigert and Hein Kötz. The three moments that constitute modern comparative law, despite their differences, have a remarkable similarity: the construction of the self of the Global North through the construction of the self of the Global South. The first is a legal subject, the second a legal barbarian. In each of these three moments in the genealogy of modern comparative law the “other”, the legal barbarian, is articulated in very specific ways. However, in all of them, it is articulated on the basis of everything that the metropolis subject, the European legal subject, is not and would not like to be.
Instrumental Comparative Law: Geography, Law, and Politics
In instrumental comparative law, this narrative is articulated as a tool for political and legal philosophy. The comparative method provides the empirical information to justify the philosophical theses defended by enlightened political and legal philosophers. Montesquieu, widely recognized as the father of modern comparative law, articulates the self/other opposition in two steps. In the first step, he presents and justifies his natural law theory. He starts by asserting that there are universal moral principles of divine origin, and that a norm can only qualify as a legal norm if it reflects and does not contradict such moral principles. He then argues that positive law must always be constructed and interpreted in the light of the geographical and climatic characteristics of states, as well as the psychological and biological characteristics of the individuals who inhabit them.
In the second step, Montesquieu describes and analyzes how his theoretical theses materialize in the world. The arguments justifying his conclusions come from the comparative studies available at the time. In particular, they come from the descriptions of non-European societies made by missionaries, merchants, and diplomats. Montesquieu’s descriptive and analytical arguments are structured around two types of subjects: the European and the Asian. These subjects inhabit an imagined geography, Europe or Asia, and experience history statically. The physical conditions of the space inhabited by the subjects determine the characteristics of their law and politics. The vast plains and hot climate of Asia, Montesquieu argues, explain the despotism of its political communities. Governing a dispersed population in large territories is difficult and demands hierarchical and centralized political communities. High temperatures affect the biology of the subjects: they weaken their bodies and makes them less dynamic; they soften their minds and makes them less sharp; they loosen their temperaments and slips them into cowardice. The richness of their soils and the absence of seasons make them less productive and economically farsighted. Inaction does not result in hunger and cold. The climatological and topographical characteristics make them subject to political and juridical passivity, to the acceptance of their destiny as subjects. In contrast, the compact territories contained by mountains in Europe, as well as the cycles generated by seasons, destine Europeans to live in political communities organized as constitutional monarchies or republics. The land, not as productive as in the tropics, and the variable and extreme climate, moreover, make Europeans sharp, farsighted, and courageous. Europeans, consequently, are strong individuals who understand themselves as equals and depend on themselves for survival. The law, for these individuals, is an instrument to protect equality, as well as autonomy. For Europeans, the state, constrained by law, must create the conditions for individuals to survive and flourish.
Comparative Legislative Studies: Law, History, and Development
The second moment of the genealogy of modern comparative law, comparative legislative studies, has as its object of study statutes, the products of the legislator. The comparative analysis of this type of norms aims to provide the information necessary for commerce and imperial governments to function properly. The purpose of comparative law at this second stage, therefore, is not theoretical but practical. The global nature of commercial transactions and the challenges of the relations between the European metropolises and their colonies demand a thorough knowledge of the legal systems of the states that make up or wish to become part of the international community.
Henry Maine’s work paradigmatically represents this moment in comparative law. At the center of the narrative he constructs is the conceptual opposition self/other that shapes modern comparative law. Maine’s narrative has as its key component a linear concept of history. The idea of progress, common in the 19th century, is central to this discursive structure. From Maine’s perspective, history has a beginning and an end. Between one and the other, moreover, there is a series of precise and stable stages that all political communities must experience. European law is identified with progress. The law of the non-European world is understood as developing. The legal systems of the non-European world occupy different stages of the line that constitutes history. In Maine’s narrative this is experienced by two types of subjects: the metropolis subject and the colonial subject, the subject of rights and the legal barbarian. The former inhabits an imagined Western Europe that Maine identifies with civilization; the latter, an imagined non-European world that he identifies with the primitive.
Comparative Law as an Autonomous Discipline: Liberal Cosmopolitanism and Legal Taxonomies
The third moment of modern comparative law emerged at the beginning of the 20th century. At this time comparative law is articulated as an autonomous discipline with two intertwining central objectives: the unification/harmonization of law and the creation of legal taxonomies. Both objectives are based on a liberal cosmopolitanism committed to the progressive creation of an international community governed by law. Understanding the legal world is a prerequisite for its homogenization. The organization of law into legal families pinpoints the differences and similarities between legal systems, as well as the methodological and substantive paths that would eliminate undesirable legal distinctions.
Rene David’s, Konrad Zweigert’s and Hein Kötz’s work articulate this narrative in a paradigmatic way. It is structured around three arguments that revolve around the conceptual opposition self/other. First, the narrative constructs an imagined geography that divides the world into Western legal families, the most robust and important, and non-Western legal families, the least vigorous and relevant. The civil and common law families, moreover, are the product of the strengths of Romano-Germanic and Anglo-Saxon cultures. Law is a product of culture, and European culture is much richer and more complex than those of the rest of the world. The narrative of legal families, moreover, distinguishes between parent legal systems and child legal systems. This, which is a criterion that distinguishes legal systems within each of the European families, differentiates between the legal systems of Northern Europe and the United States, which in the narrative are the original source of the traditions, and the rest of the legal systems, mainly in the Global South, which receive and reproduce them.
Second, the narrative creates particular subjects that inhabit the geographies it constructs: the colonial subject and the metropolis subject. The identities of these subjects are territorialized. Subjects are a function of the space they inhabit. The colonial subject, which is part of the child legal systems, is a minor iteration of the metropolis subject. The former cannot create original legal knowledge, it only reproduces and disseminates the legal knowledge created by the latter. Finally, third, this territorialized subject inhabits, experiences, a linear notion of time. Legal history, as in comparative legislative studies, has an end, occupied by the mother legal communities, and a beginning and a series of stages, occupied by the child legal communities.
The dominant narrative constructed by these three stages has been challenged from the margins by intellectual movements such as Third World Approaches to International Law (TWAIL), postcolonial legal studies, decolonial law, and critical comparative law. These three perspectives question, despite their differences and internal diversity, the vertical nature of the model, which hierarchizes the world’s legal systems by appealing to unjustified criteria. Likewise, these theoretical perspectives offer partial normative alternatives to the dominant model.
In sum, if we want to understand how subjects immersed in modern culture comprehend themselves we must examine the narratives constructed by comparative law. Only then could we fully understand common questions in contemporary political and legal life such as why legal transplants generally have only one direction: North –> South; why the countries of the Global South are commonly interpreted as a poor context for the production of legal knowledge; why the flow of graduate students generally moves from the Global South and into the Global North; why we think of our legal communities as the product of our cultures; and why we still believe that our cultures are a consequence of topography and climate. Comparative law has constructed narratives that we have naturalized and that create a vertical relationship between the legal communities of the Global North and the Global South. We need to know these narratives in order to question them; we need to critically examine them in order to transform them.
Posted by Daniel Bonilla Maldonado, Universidad de los Andes, Bogotá, Colombia
This post presents the key ideas offered in Legal Barbarians: Identity, Modern Comparative Law, and the Global South (Cambridge University Press)
For a much longer Spanish and English versions of this post see D. Bonilla Maldonado, ‘Los bárbaros jurídicos’, in Repensar la educación en derecho internacional en América Latina: avances y discusiones, pp., 241-256 and This Century’s Review.