Modern Law and Otherness
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Modern Law and Otherness

The Dynamics of Inclusion and Exclusion in Comparative Legal Thought

Veronica Corcodel

Over the last two decades or so, the field of comparative law has been increasingly interested in issues of globalisation and Eurocentrism. This book inscribes itself within the debates that have arisen on these issues and aims to provide a greater understanding of the ways in which the “non-West” is constructed in Euro-American comparative law. Approaching knowledge production from an interdisciplinary and critical perspective, the book puts emphasis on the governance implications of the field.
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Chapter 3: Henry Maine and the legal foundations of liberal imperialism

Veronica Corcodel

Abstract

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.

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