This chapter explains the theoretical framework used for analysing the governance implications of comparative law. Building on postcolonial theories, it argues that comparative law should be understood as a site of production of politically meaningful representations of the ‘non-West’. Drawing on some of the existing critical approaches to international law, it also puts emphasis on the importance of leaving space for ambivalence in the analysis of comparative legal thought. Considering these insights, the chapter concludes with an account of this book’s contribution to critical legal scholarship and to existing debates on Eurocentrism in comparative law.

This chapter analyses the works of Sir Henry Sumner Maine, who participated in the colonial administration of India from 1862 to 1869. It starts by outlining his evolutionary theoretical framework, based on a definition of Western ‘progressive societies’ in opposition to Eastern ‘stationary societies’. The chapter foregrounds the ways in which this construction produces a tension between inclusion and exclusion. Maine uses it both to criticize the alleged universality of liberal legal ideas and to re-affirm them within a universal understanding of societies as moving ‘from status to contract’. Moreover, while criticizing British policies for failing to recognize India’s particular form of social organization, he is also apologetic of British liberal reforms. It is argued that the critical potential of Maine’s work is considerably limited by a taken-for-granted notion of modernity paired with ideas about what constitutes a superior civilization.

This chapter focuses on some of the most important early twentieth-century comparatists. These scholars criticize many features of the liberal legal order defended by Henry Maine, but do not altogether break away from them. Putting forward a ‘social’ conception of law, which is defended as the most advanced stage of evolution, they also endorse certain nineteenth-century ideas. It is argued that the ‘social’ stage is both relativized as Western and posited as universal. This facilitates a construction of the ‘non-West’ as backward and compelled to fit into the Western model to be recognized as modern or civilized. The chapter contends that such an exclusionary representation coexists with promises of inclusion emerging from critiques of ideas of universality and of Western expansion. The critical potential of these promises, however, is limited by unchallenged notions of civilization and modernity.

This chapter analyses some of the most important post-World War II comparative legal works. With a more seemingly politically detached tone, many of these scholars distinguish themselves from evolutionary thinking while reproducing ‘new’ unacknowledged versions of it. Assuming a putatively universal path from the traditional/underdeveloped to the modern/developed, the meaning of the ‘West’ is reproduced through a definitional exclusion of the ‘non-West’. It is argued that this stands in tension with promises of inclusion, arising from critiques of both evolutionary thinking and Western expansion. The critical potential of post-war comparative law is, however, limited by taken-for-granted notions of modernity and economic development, which facilitate contentions or assumptions of a desirable Western-like transformation of the ‘non-West’.

This book has shown that for more than a century an important part of Euro-American comparative legal thought has been animated in different ways by tensions between inclusion and exclusion. This dynamic operates through antinomies between the particular and the universal, between critiques and apologies for Western domination. Based on postcolonial insights, ideas about the West and its Others have been approached as politically meaningful representations, embedded in historical and contemporary (neo-) liberal power relationships.1 The objective was to understand better the governance implica¬tions of comparative legal knowledge and the ways in which it is constructed.