The Dynamics of Inclusion and Exclusion in Comparative Legal Thought
Chapter 4: Pre-war twentieth-century comparative law: ambivalent social apologies for modernization
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.
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