It would not be surprising if, in the context of an international conference, a group of jurists from different nations identified a set of common juridical references based on different legal systems. This occurrence would be attributed to the process of globalisation. However, it might also not be considered curious if a historic study about law in the nineteenth century were to conclude that legal systems from various corners of the world shared a set of common legal principles. It is common for jurists from a significant variety of countries to encounter the same legal and hermeneutic models as well as the same conceptions of fundamental rights, accountability, governance, and democracy. In the past, as in the present, these models were imposed on different contexts and realities always with the justification that they assure a future state that is better than the current one. From this perspective, it is possible to affirm that the global acceptance of jurists with these legal methods is based on concepts such as “overcoming deficiencies,” “progress” or “development” and, in this sense, justified by the moral dichotomy of good and bad. From a philosophical point of view this concept of a morally universal law is related to the model of humanism and rationalism developed in the West.
In my view, this kind of approach presupposes the existence of a set of values belonging to everyone in the world, without distinction, as a sort of universal essence of human beings. These supposed universal characteristics not only require that everyone should be treated equally, but also that legal procedures destined to the protection of human values have to be implemented in the same way. In my opinion, this approach should be reassessed.
Although it claims to be neutral and uniform, an exclusive definition of humanity leads to many contradictions. One of them is the risk of attributing moral superiority to Western legal institutions. This risk is particularly insidious because the adoption of Western normative standards is justified through the universalisability of human values. This is a result of one of the projects of rationalising the world, known as the Enlightenment. The argumentative “strategy” is simple: on the one hand, there are civilised spaces imbued with the supposed virtues of intellectual rationalisation, and on the other, there are presumed to be pockets of injustice, governed by irrational and backward norms. As a result, institutions, values, and ways of life that were defined as rational acquire superiority.
Since the universalised institutions and standards closely correspond to the historical-social traditions of Europe and the United States – their laws, legal orders, and economy – a legal culture of a few countries is presented as globally applicable. Therefore, the attempt to solve conflicts by imposing universal procedures originating in north-western societies is destined to fail. In this respect, it is emphasised that the origin is not a problem in itself, but it becomes a problem because of the contradictory structure of discourse that combines morality, humanism, and universalisation. By claiming for itself universality, this discourse does not recognise other rationalities, on the contrary, it treats them as irrational. As I have stated above, the result is an imposition from a position of superiority, by means of the election of only one world-view as rational. Asymmetries and domination are, therefore, part of the fabric of a humanist discourse.
This contradictory trope creates images of a civilised North in relation to the observance of rights, making its practices and institutions exempt from questioning, and, at the same time, providing the criteria against which the rest of the world is judged. I would like to stress that these double standards become evident in situations in which countries of the North openly violate human rights. I am thinking, for example, of the connivance of official supranational agencies and courts with detention camps for irregular immigrants, with security policies against terrorism, or with the legal prescription of the death penalty. Furthermore, on a micro-social level, one can think of the many denunciations of human rights violations in Latin America presented to the Inter-American Commission on Human Rights and Court by law clinics at law schools in the USA – particularly considering that the USA, together with Canada, have not ratified the Pact of San José, Costa Rica.
Starting with the research of Edward Said on Orientalism, post-colonial studies have developed a critique of these claims of universalisation. Said maintains that the West’s knowledge of the Orient serves a self-referential logic. Influenced by Foucault’s notion of discourse, Said presents Orientalism as an imaginative European invention aimed at the reaffirmation of the very idea of the West. The Orient is artificially constructed as the “other” and “inferior.” In opposition to this Oriental “other”, Western values constitute the identity and superiority of the West.
With the rise of other post-colonial approaches the “other” projected as inferior or backwards includes not only the Orient, but also the rest of the non-western world. The distinction between the West and the rest of the world is discursively constructed in an asymmetric way by the imaginary of Northern countries, to establish their identity and fabricate their superiority. Since, however, this discourse is imposed as a universal morality inherent in nature, this process leads to monopolisation on the part of the Western semantic of concepts such as human progress and modernity. This discursive strategy of domination has been called the ‘Coloniality of Knowledge’ by Latin American post-colonialism. I would argue that this kind of coloniality legitimates political-military interventions and the imposition of models on other regions – even if this has meant support for dictators in many parts of the world or the global diffusion of techniques of torture.
By demonstrating that the Western legacy does not correspond to an objective reality, but rather to a discourse that is constitutive of identity by opposition to the other, post-colonial studies identify strategies of exclusion, colonisation, and hierarchisation of global processes as central to the universalising projects of Western modernity. In this way, dominant social forces are not established exclusively through the use of violence. Even if this dimension is not ignored, domination is only established when the dominated conceive and accept the vision of the world of the dominator as the “natural order of things”, as Chimni indicates. I believe that applying this notion to the realm of a post-colonial sociology of law would enable a reinterpretation of the social function of legal discourses from the perspective of the asymmetric relations of power between global regions.
As a synonym for humanity, development, and modernity, Western legal culture has become an instrument for Northern domination in the South. In this process Chimni identifies the role of legal language as ideological and legitimising: Northern legal discourses are presented as rational and fair, producing rules that should be accepted by the South. Because of its supposed quality and neutrality, Western legal discourse elevates itself to a superior position in the scale of civilisation, and Western Societies act as protagonists in the South. What is involved here is a process of obscuring colonial relations by means of legal discourse and legal tools.
Given this, the universalisation of legal rationality can be re-read. This rationality was presented by mainstream European thought in the nineteenth century as a superior discourse, supposedly resulting from the accumulation of knowledge about the world, and scientific methods which according to logical schemes of deduction and induction were capable of promoting a generalisation of rules based on cases. According to Anghie, by affirming itself as the sole condition for modern law, legal rationalisation separated the world between civilized regions (those that have this knowledge) and uncivilised ones (with “irrational and primitive” legal forms). This distinction justifies the global imposition of Northern legal models, and the colonisation of the discordant manifestations of law in the rest of the world.
In relation to current issues, we can consider for example legal frameworks presented in the North as universal, owing to their alleged neutrality, and ethical or moral quality. Governance, accountability, democracy and so forth are concepts that when mobilised construct a field of comparison in which the socio-legal development of the North is considered the only one to be valid. This claim of superiority becomes a criterion for judging and excluding alternative legal rationalities in the rest of the world. In this sense, Chimni states that in the global South institutional designs, guided by the degree of concordance with ideas of citizenship or governance of the “true” democracies, reproduce the same logic as used by the “civilising missions” of the past, and thus authorise recolonisations.
In short, the universal legal discourse reproduces the following paradigm: given that it adopts Western standards as synonyms for “humanity,” “development,” or “modernity”, the legal reality of the conceptually maladjusted countries of the South is reconstructed in opposition. The absence of these Western characteristics is understood as backwardness, and, therefore, those standards from the North, which supposedly the South lacks, should be imported. Hence, hierarchical positions of global power are maintained. According to Hall, this reproduces, by means of law, the same logical structures as colonial relationships: the notion of “universalism,” monopolised by the semantics of the countries of the North, not only oppresses empiric and cognitive manifestations of the South (incompleteness, irrationality, deviation), but also demands their conformity (modernisation).
While Western formal or material legal rationality is based on a claim of universality, Chatterjee demonstrates that the semantic schemes of “other societies” are supported by the recognition of difference, or on their ethnic, cultural, religious, and social particularities – even as resistance to the expansion of the enlightenment project. Thus, without autochthone equivalents, the imposition of the model of European or U.S. law has led to a split in colonised spaces between legal discourse, which follows the Western archetype, and social dynamics, which require statutes that respond to its specificities. From this perspective, the commonplace diagnosis about the separation between law and society in the global South acquires another meaning. On the one hand, it explains how the discourse of reform is considered to be routine by legal protagonists in these regions: the reality always appears to frustrate the expectations generated by institutional designs based on the U.S.A or European model. On the other, it reveals the empirical and theoretical obstacles to projects of democracy based on the universalisation of a model of law and of a particular type of society.
This does not involve a defence of cultural relativism or of multiculturalism. These constructions are not alternatives, but, on the contrary, they are part of the universalist discourse to the degree to which the “other” is built by techniques of “exoticisation” and subalternisation. Likewise, universalist discourse, cultural relativism, and multiculturalism produce cultural hierarchies that exclude the “other” from decision-making processes, transforming them into exotic, mystical or primitive characters who should be frozen and preserved.
The universal project of legal enlightenment is, in reality, full of tension. It involves apparently neutral semantics, which serve to conceal positions of power and block the emergence of different semantics. From the perspective of colonial history, it is clear that this violence was and still is essential to the expansion of capitalism. I am not rejecting the possibility of the world law and society thesis. However, this thesis should be established by taking into account alternative legal regimes and different political societies.
Guilherme Leite Gonçalves has a PhD in the Sociology of Law from the University of Salento (Italy) and is currently Humboldt Foundation George Foster Research Fellow at the Free University in Berlin and at Bremen University (Germany).
Translated from Portuguese by Jeffrey Hoff.
This article first appeared in print in the first issue of This Century’s Review, a new journal that is “not afraid to present parlances in the same context, letting connections emerge between law and literature, music, and art.” We are grateful to both the author and the Editor-in-chief, Dr Laura Di Gregorio, for permission to publish this article here for the first time in digital form.
ANGHIE, A. (1999), “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law”. Harvard International Law Journal, vol. 40, n. 1, pp.1-71.
CHATTERJEE, P. (1998), “Community in the East”. Economic and Political Weekly, vol. 33, n. 6, pp. 277-282.
CHIMNI, B. S. (2006), “Third World Approaches to International Law: A Manifesto”. International Community Law Review, vol. 8, pp.3-27.
COSTA, S. (2003), “Democracia cosmopolita: déficits conceituais e equívocos políticos”. Revista Brasileira de Ciências Sociais, vol. 18, n. 53, pp.19-32.
________ und BOATCǍ, M. (2009), “Postkoloniale Soziologie: ein Programm”. In Reuter, J. e Villa, P. (Orgs.). Postkoloniale Soziologie. Empirische Befunde, theoretische Anschlüsse, politische Intervention. Bielefeld: Transcript, pp.69-90.
DE GIORGI, R. (2010), “Multiculturalismo, identidad y derecho”. XI Congreso Nacional y Latinoamericano de Sociología Jurídica, Buenos Aires: Sociedad Argentina de Sociología Jurídica, pp.1-14.
DUSSEL, E. (2000), “Europa, modernidad y eurocentrismo,” in Lander, Edgardo (Ed.), La colonialidad del saber: eurocentrismo y ciencias sociales, Caracas: Unesco/UCV, pp.41-53.
HALL, Stuart. (1996), “When was ‘the Post-colonial’? Thinking at the Limit”. In: Curti, L. and Chambers, I. (eds), The Post-colonial Question: Common Skies, Divided Horizons. London: Routledge, pp. 242-260.
______. (2007), “The West and the Rest: Discourse and Power”. In: DAS GUPTA, T. et al. (eds), Race and Racialization: Essential Readings. Toronto: Canadian Scholars Press, pp. 56-64.
SAID, Edward W. (2003) , Orientalism. London: Penguin Books.