@article{2016:schacherreiter:postcoloni,
title = {Postcolonial Theory and Comparative Law: On the Methodological and Epistemological Benefits to Comparative Law through Postcolonial Theory.},
year = {2016},
note = {Working as a comparative lawyer means engaging with foreign law. In
the process of comparing, the comparatist creates a relationship
between the Self and the Other and tries to identify commonalities and
differences. This always goes along with the danger of lapsing into an
either-or dichotomy of ethnocentrism and cultural relativism. In
comparative law we face the same danger. Either we use our own
standards as if they were universal (ethnocentrism) or we abandon them
completely to allow the Other the realization of its own world
(cultural relativism). Postcolonial theory has shown that both
ethnocentrism and cultural relativism impede the understanding of the
Other and has suggested various possibilities for overcoming this
either-or dichotomy. This article analyzes how comparative law can
make use of these ideas, particularly regarding the use of universal
standards, the comparative method and understanding, the
classification of legal systems and legal transplants. Drawing from
postcolonial ideas, the article argues that comparative lawyers should
understand the relationship between the Self and the Other in terms of
dialectic and hybridity rather than in terms of dichotomies and
homogeneity. The comparison should be based on extensive
engagement-but not identification-with the Other and self-critical
analysis-but not abandonment-of our own standards. The aim is not a
situation of perfect commensurability but rather to use the dialectic
between the Self and the Other as a source of understanding.},
journal = {VRÜ Verfassung und Recht in Übersee},
pages = {291--312},
author = {Schacherreiter, Judith},
volume = {49},
number = {3}
}