Are we aware of the current recolonisation of the South?

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.


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