Decolonial Comparative Law
Consciously or unconsciously, our modern world has been shaped against the backdrop of coloniality, with the result that coloniality serves as a dark flipside of modernity. Identifying and overcoming its implications has become a basic postulate in many academic disciplines. A long-term project of Institute Director Ralf Michaels looks to take similar steps in the field of comparative law.
Since its beginning almost a hundred years ago, researchers at the Max Planck Institute for Comparative and International Private Law have dedicated themselves to the study of comparative law. Comparative law traditionally aims at understanding and comparing different laws and legal systems, and at supporting international unification of law, whether within the framework of the European Union or the United Nations. Comparative law views itself as a cosmopolitan and modern discipline, standing in contrast to the narrow perspective of national legal thought.
Yet in this way, a hierarchy is often cemented between the modern, national law of European states on the one hand and the – ostensibly – less modern law of other states and societies on the other. Often this happens unconsciously, such as when national law becomes the reference point when drawing comparisons. “The focus on the nation-state and the privileging of secular law over religious law represent problematical ways of thinking," says Institute Director Ralf Michaels. It is his aim to counter the prevailing universalism of modern legal thought with an appreciation of pluriversality, namely the recognition of different models of thought. To do this, it is necessary to examine the extent to which our legal thinking is shaped by coloniality, i.e. how legal thinking is influenced by thought processes that emerge from colonialization and continue after decolinization.
„Coloniality is not limited to the modern era of colonialism, but describes instead a totalizing and universalizing way of thinking that underlies modernity."
– Ralf Michaels –
Within the framework of a collaborative long-term project, Michaels intends to decolonialize comparative law, which should then be drawn upon in fashioning a new approach to legal thought. Together with Lena Salaymeh, British Academy Global Professor at the University of Oxford and former research fellow at the Institute, he has initiated the research project “Decolonial Comparative Law”.
Emancipation from the universalizing thought process of modernity
Established notions of what is to be regarded as law are presently called into question not only in academic discourse but also in court when parties assert pre-colonial or indigenous law. "Coloniality is not limited to the modern era of colonialism, but describes instead a totalizing and universalizing way of thinking that underlies modernity," says Ralf Michaels. “Even where known, pre-colonial legal traditions are often rewritten by the language of colonization. We want to identify them where possible on the basis of primary sources in order to reveal their independence and socio-cultural context. And we want to determine the extent to which Western legal institutions, such as private property or marriage, are shaped by a certain conception of modernity and coloniality.”
Academic impulses from the global South
Ralf Michaels and Lena Salaymeh consider the participation of scholars from the global South as fundamental to the success of the project. As project kick-off, an online workshop was held in October 2020 in cooperation with Witwatersrand University in Johannesburg; the papers and findings from the workshop are scheduled for publication in 2022. The workshop’s online setting, a forum dictated by the current pandemic, facilitated the participation of a greater number of researchers from diverse regions. The next academic gathering, scheduled for September 2022, will be a hybrid workshop held in partnership with the University of Oxford.
A key component of the project is a digital platform that can be accessed free of charge at https://www.mpipriv.de/decolonial. Among other elements, the website features links to two regularly updated bibliographies on decolonial legal studies and decolonial theory.