DECOLONISING COMPARATIVE (CONSTITUTIONAL) LAW: A PRAGMATIC APPROACH

Por

RACHELE CECCHI

University of Florence (Italy)

[email protected]

Revista General de Derecho Público Comparado 35 (2024)

“the more one is able to leave one’s cultural home, the more easily is one able to judge it, and the whole world as well, with the spiritual detachment and generosity necessary for true vision.

The more easily, too, does one assess oneself and alien cultures

with the same combination of intimacy and distance.”

― Edward W. Said, Orientalism

ABSTRACT: Is it possible to decolonise comparative (constitutional) law? And what does it mean practically to do so? Those questions are not anymore avoidable by lawyers, and especially by comparative lawyers who make the comparative tools and the analysis of foreign legal system the distinctive pillar of their own identity as researchers. In light of the urgency of such interrogatives, the contribution aims at reconstructing the scholarship on the decolonisation of comparative legal studies, and especially of comparative (constitutional) law, exploring the main reflections and challenges in the field by following the practical development of a research from its framing (epistemology) to the actual endeavor (methodology) and finally to the research purpose and impact (dissemination and outreach).

KEYWORDS: Decolonisation; decolonial comparative studies; qualitative legal studies; interdisciplinarity.

SUMMARY: I. INTRODUCTION. - II. DECOLONISING THE FRAMING: ON POSITIONALITY, DELINKING AND THE LEGAL PLURIVERSE. - III. DECOLONISING THE DOING: INTERDISCIPLINARITY AND GOING TO (AND WITH) THE SOUTH. - IV. DECOLONISING AIMS AND AFTERMATHS: ON TRANSLATION, BEST PRACTICES AND EXPLORATIVE MINDSETS. - V. FINAL REMARKS.

DESCOLONIZAR EL DERECHO (CONSTITUCIONAL) COMPARADO: UN ENFOQUE PRAGMÁTICO

RESUMEN: ¿Es posible descolonizar el Derecho (comparado)? ¿Y qué significa en la práctica hacerlo? Estas preguntas ya no son eludibles para los juristas, y especialmente para los juristas comparatistas que hacen de las herramientas comparativas y del análisis del ordenamiento jurídico extranjero el pilar distintivo de su propia identidad como investigadores. A la luz de la urgencia de tales interrogantes, la contribución tiene como objetivo reconstruir la erudición sobre la descolonización de los estudios jurídicos comparados, y especialmente del derecho (constitucional) comparado, explorando las principales reflexiones y desafíos en el campo, siguiendo el desarrollo práctico de una investigación desde su encuadre (epistemología), hasta el esfuerzo real (metodología) y, finalmente, hasta el propósito y el impacto de la investigación (difusión y divulgación).

PALABRAS CLAVE: Descolonización; estudios comparativos decoloniales; estudios jurídicos cualitativos; interdisciplinariedad.

SUMARIO: I. INTRODUCCIÓN. - II. DESCOLONIZAR EL ENCUADRE: SOBRE LA POSICIONALIDAD, LA DESVINCULACIÓN Y EL PLURIVERSO JURÍDICO. - III. DESCOLONIZAR EL HACER: INTERDISCIPLINARIEDAD E IR A (Y CON) EL SUR. - IV. DESCOLONIZAR LOS OBJETIVOS Y LAS CONSECUENCIAS: TRADUCCIÓN, BUENAS PRÁCTICAS Y MENTALIDAD EXPLORATORIA. - V. OBSERVACIONES FINALES.

Fecha recepción: 07/05/2024

Fecha aceptación: 20/05/2024

I. INTRODUCTION

The decolonisation of disciplines and research is not a new aspiration: from the of last century onwards, many argued that the formal end of colonialism and the colonial states getting political independence would not be sufficient to alter the profound structures of power and knowledge. From critical theory, many approaches to humanities and social sciences developed with the aim of reversing (post-colonial) and disrupting the more resistant deep structures (de-colonial) of the colonial past. And still, we confront every day with the reality that <<Europe and the U.S. continue to set the standards against which the rest of the world is measured(1)>>. The robust legacy of colonialism goes well beyond economic imposition and territorial occupation; it is rather expressed in terms of production of knowledge and meaning(2). The formal end of colonialism has simply made this dynamic more subtle: as Anibal Quijano suggests, <<Cultural Europeanization was transformed into an aspiration. It was a way of participating and later to reach the same material benefits and the same power as the Europeans(3)>>. This deep structure, which goes by the term “coloniality” in order to distinguish it from colonialism strictu sensu, is made by a net of epistemological laces that <<colonize the imagination of the the dominated>>, with the effect that rationales of the Global North are ranked higher, according to a biased rating system which purports to be <<scientifically neutral and purely descriptive(4)>>. If Ralf Micheals was here mainly questioning the Doing Business Rankings(5), the scope of this paper also calls for a mention of the Global University Rankings in terms of conditioning research and teaching outputs to the point of leading some well-known universities to quit the system(6).

In referring to such structures, Trouillot has pointed out that they are <<chunks of human history that have become historical standards (...) loaded with aesthetic and stylistic sensibilities; religious and philosophical persuasions; cultural assumptions ranging from what it means to be a human being to the proper relationship between humans and the natural world; ideological choices ranging from the nature of the political to its possibilities of transformation(7)>>. Modern law is one of those structure flaunting objectivity and neutrality but hiding its inner nature of <<white mythology>>(8). Moreover, law is particularly impactful in reinforcing and reproducing such structures(9). It is in light of such premises that the promoters of decolonisation of legal sciences are particularly harsh in denouncing the limited effort (at least if compared with the decolonial scholarship coming from other social sciences(10)) that legal scholars have made in order to recognise and deconstruct the colonial biases of the discipline(11).

A bright example of the relevance of such claims lies in the concept of human rights, which stands at the very core of liberal conceptions of justice. Still, it is enough to scratch the surface to see how divisive the whole theory of human rights is, particularly in relation to their universality and their mainly individualistic nature(12). The debate over universalism and relativism, as well those on individual and collective rights, have been brightly inflaming (and continues to do so) the field of international law: decolonial scholars have profoundly denounced <<such formal exercise and standardization of human beings as mere “right holders” [which] comes with the Universal Declaration of Human Rights in 1948(13)>>. Particularly, the fact that <<human rights include a very restricted profile: white, proprietary, and heteronormative. Anything that does not fit in this profile is on the fringes of citizenship, including people, as Indigenous people, who have a different notion of land as a being that has to be respected, rather than a resource that can be exploited(14)>>. This trend is reflected by the majority of world constitutions: against this background, the andean or “New Latin American” constitutionalism is often seen as a container of some <<non-hegemonic conceptions of fundamental rights(15)>>.

Narrowing the focus from general legal sciences to comparative legal sciences, it is worth expliciting that, in the Global South, comparative law is frequently associated with legal colonialism, in light of the very reason of being of the discipline and its historical foundations. In fact, not only has comparative law participated to colonialism directly and indirectly, but kept being employed, even after the end of formal colonial rule, <<as a tool for advancing social engineering in pursuit of western imperialist agendas>>(16). Alongside the centrifugal force attributed particularly to comparative constitutional law, which Gunter Frankenberg sagaciously synthesized by saying that <<comparatists work in the export business(17)>>, another major critique to the comparative scholarship coming from the South points at how minoritarian the studies of southern constitutions are in the academy, wondering <<how truly “comparative,” universal, or generalizable are the lessons of a body of knowledge that draws almost exclusively on a small — and not necessarily representative — set of frequently studied jurisdictions and court rulings to advance what is portrayed as general knowledge(18)>>. In addition, Michaels notices that <<When it did take other legal orders into account, it regarded them as being nothing more than inferior versions of their European models, with Nigerian law as a shoddy copy of English law, Japanese law as a poor imitation of German law, and so on(19)>>.

In his own proposal for the decolonisation of comparative law, the South African Scholar Emile Zitzke pinpoints the intrinsically colonial structure of both the Constitution of South Africa as well as the structure of legal studies in South African universities(20). If the fundamental question that the author addresses is that of “can the constitutions of modern nation-states be decolonized?”, he interestingly finds the answer in the decolonisation of comparative legal studies, suggesting to “twist” the instrument of the comparison to a purely decolonial aim(21). According to the author’s view, notwithstanding the constitutional recognition of both common and customary law, not only the latter is rarely addressed by university’s legal courses but not true integration of the two is really promoted; they are rather kept <<separated but equal>> and both subjected to the overarching human rights doctrine. This leads, according to Zitzke, to the inevitable course of action that <<the historically more powerful fish of the common law is simply eating the smaller customary one>>(22). What is proposed to counter such phenomenon is comparing common and customary law through an intra-state comparison aimed at deconstructing the legal elements, confronting them and inserting them in their own proper milieu, to move from a condition of separateness to one of <<actively subversive hybridity>>(23).

The kind of proposal exposed above has the potential to capture the distinctive aspects and inner legal culture of South African legal system(s), producing a real paradigmatic shift. Through similar proposals, the comparative legal analysis may be able to invert the trajectory and set truly new and alternative standards, instead of <<merely inserting the Global South vocabulary into Global North sentences about comparative law>>(24). This process is decolonial in that it a) acknowledges that orthodox enunciation are not planetary representations, but local institutions and b) triggers alternative manners of thinking, living, making and unmaking laws and legal knowledge(25). Moreover, such alternatives may even be useful in times of deep <<polycrisis>>(26): as the anthropologists Jean and John Comaroff wrote already twelve years ago: <<what if we posit that, in the present moment, it is the global south that affords privileged insights into the workings of the world at large?>>(27).

Given the mentioned origins and the “export” role that comparative law has often been playing, the decolonisation of comparative law is something particularly difficult, as it challenges its identity at the core and claims for an actual re-doing of the field(28). Still, such challenge is no longer avoidable: in the words of Gunter Frankenberg: <<As long as comparatists do not address hegemony and ethnocentrism, the widespread, though generally unacknowledged, discomfort with strangeness will remain one of the dirty little secrets of contemporary comparative constitutional jurisprudence>>(29). It is on such premises, and which such purpose, that the contribution will try to build up a “practical toolkit” for the decolonisation of comparative (constitutional) legal research by following the stages that a research usually entails: the framing of the research through the comparatist’s epistemology (2), the research activity strictu sensu to be performed through methodology (3) and finally the results of the research and its impact (4). Finally, some remarks will be made, and conclusions drawn (5).

Before moving on, though, a brief disclaimer is required. It is sometimes suggested that only Global South scholars should be involved in decoloniality, while scholars from the Global North should just be quiet and listen. Against such a view, it is instead worth noticing that <<a mere reversal of hierarchies between Global North and Global South will not overcome coloniality by itself>>(30). Moreover, the reach of decolonial comparative law from southern scholarship risks to be limited if not complemented by the Global North’s “internal decolonization”, meaning the effort to <<subvert Western rationalities from within by heightening the contradictions and suppressions involved in their construction>>(31). It is for the above reason that global north scholars must be involved in decoloniality. Finally, the reason why they should involve themselves in decoloniality has to do with the fact that it gives new tools to better understand law in both North and South: at the end of the day <<the Southern turn is a double turn: after the pivot to the South, it turns back to the North and to the world as a whole>>(32).

II. DECOLONISING THE FRAMING: ON POSITIONALITY, DELINKING AND THE LEGAL PLURIVERSE

As already mentioned, the core problem of coloniality is an epistemological one. The legal sociologist de Sousa Santos coined the term epistemicide to refer to <<the destruction of an immense variety of ways of knowing that prevail mainly on the other side of the abyssal line>>(33). According to the author, the effect of such a process on colonized societies is <<rendering them incapable of representing the world as their own in their own terms, and thus of considering the world as susceptible to being changed by their own power and for their own objectives>>. It is a problem of representation, that has the effect of silencing and making inaccessible everything that is situated <<on the other side of the abyss>>. Incapable of even seeing the abyss, <<the researcher uses his or her own bias while problematizing, concluding, reasoning, or systematizing the study of another culture>>(34). This holds particularly true for western and northern comparative constitutional scholars, which are often <<prone to take the whole world to be a liberal scenario>>(35).

This kind of approach has to do with the perception of the other. In 1978, Edward Said wrote about “flexible positional superiority”, meaning a position assumed by western eyes that <<puts the Westerner in a whole series of possible relationships with the Orient without ever losing him the relative upper hand>>(36). Similarly, Frankenberg critique’s to mainstream comparative constitutional scholarship argues that <<the comparative representation of the constitutional ‘other’ is intensely normative from the start: the foreign (constitution, constitutional culture, constitutional court) may be interesting or puzzling, inspiring or exotic but the familiar will invariably be valued more highly>>(37). The process of normalization is the cognitive natural answer to the impossibility to access what is too different from our own standpoint: such process tends to either translate in the assimilation of the difference and its neutralization (cognitive cannibalism) or to the equally problematic exoticization(38).

So, the question here is if such an attitude can be overcome and how. The argument here sustained is that being completely emancipated from our own cognitive and cultural biases is something impossible by definition. Still, alternative ways to perform comparative legal scholarship, such as the one proposed above in relation to South Africa, reframe the epistemological settling of the research in a way that prevents some epistemological traps because they try to <<change the terms of the conversation in order to modify the contents of the conversation>>(39). Moreover, there are practical precautions which help researchers being aware of such biases and may be able to minimize their consequences on the production of comparative legal knowledge. First, the researcher can start from where she stands, that is acknowledging her own positionality. Second, she can aim at detaching from her own position by putting the (legal) world into parenthesis. Third, she can dive into a different universality and frame her own research within the legal pluriverse.

First, the undoing of coloniality demands the researcher to acknowledge and understand her own position and the way that position frames her epistemology. As Legrand points out <<decoloniality requires the deconstructor to focus squarely on the comparatist-at-law-as-knower, for it is he, for instance, who does the (colonial) doing, [...]It is he who peddles this mythological caravanserai>>(40). Adopting a decolonial approach requires renouncing to <<Euro-modern law’s pretensions to objectivity, neutrality, and universality, which ignore historically contingent contemporary entanglements between power and possibility>>(41). In this vein, breaking the silence on the subject which produces knowledge destroys the scholar’s <<illusion of autonomy(42)>> by exposing that <<the detached individual self is only a fiction of the North Atlantic geography of imagination, an ideological by-product of the internal narrative of modernity>>(43). It is worth highlitghting that, while similar standpoints have long resonated in many akin discipline (history, anthropology, philosophy, sociology and legal theory just to mention some), the mainstream comparative legal scholarship <<would have the comparatist operating as a neutral or objective spectator capable of researching foreign law from a standpoint somehow not closely connected to any given culture>>(44).

Such observation points out at the inexistence of any “neutral subject” and identifies it with a not-so-neutral white, male and northern subject. This is in fact not new at all: it is instead one of the most widely-known criticisms addressed to John Rawls’ theory of justice, among others. The “original position” of Rawls’s subjects, who are supposed to be unaware of their own position and their own societies, concretizes a detachment from the other, when not a real narrow fear of the other(45). This kind of detachment is something that the comparatists cannot afford, because, whether or not she is willing to recognise it <<in the comparison no one becomes the other, but no one remains who one was before engaging the other>>(46). In this sense, positionality means acknowledging our epistemological standpoint as well as <<the embeddedness of the narrating subject in space and time>>(47).

Second, once we know exactly where we stand, we need to detach ourselves from there. This can mean, for a global north scholar engaging with the global south systems, performing what de Sousa Santos calls <<unlearning the north>>. As the author precises, this does not mean forgetting, but rather remembering in a different way, by <<taking previously learned methodologies and attitude [...] and putting them in a mental space where they can be subjected to the following exercises in discomfort>>(48). This operation is the one of distancing (or <<desprenderse>> or <<epistemic de-linking>>(49)) in the sense of <<exercising a hermeneutics of suspicion regarding its ‘foundational truths’ by uncovering what lies below their ‘face value’>>(50). Another expression which really grasps the meaning of delinking is that of <<putting the world into parentheses>>(51).

Third, if acknowledging positionality means, figuratively speaking, staying perfectly still in our own body and delinking is basically a deconstructive move (pars destruens), they are followed by the need to actively construct the epistemological framework of research in an alternative way (pars construens). What is the alternative to western epistemological universality? According to Ralf Micheals, director of the project of decolonial comparative law of the Max Plank institute of comparative law, the universality of western values and laws can be counteracted by the concept of Pluriversality, the latter intended as <<the notion of a world within which many worlds are possible>>(52). Within the pluriverse <<European based law would have its place, but merely as one of many systems, without the claim to general validity that it currently enjoys>>(53).

The concept of Pluriversality is to be distinguished from that of simple relativity, as it is built on the concept of social totality and the universality of cosmovisions, which still coexists with the existing heterogeneity of such universal cosmovisions. It is like each of them is a face of the reality, everyone of them is reality but none of them is “more real” than the others. In the words of Anibal Quijano <<The idea of social totality, then, not only does not deny but also depends on the historical diversity and heterogeneity of society, of every society. In other words, social totality not only does not deny but also requires the idea of an “Other” that is diverse, different. That difference does not necessarily imply the unequal nature of the “Other” and therefore the absolute externality of relations, the hierarchical inequality, or the social inferiority of the Other>>(54). Moreover, the term refers less to the reality of the world (onthology) and more to its understanding (gnoseology): adopting such approach to comparative legal studies means <<Renouncing the conviction that the world must be conceived as a unified totality (Christian, Liberal, or Marxist, with their respective neos) in order for it to make sense, and viewing the world as an interconnected diversity instead>>(55).

The focus on such “interconnected diversity” for a comparative legal scholar from the global north calls into play more than the individual question of <<how liberal can liberals be when it comes to recognising the views and values of others?>>.(56) The issue is more deeply rooted in the history of comparative legal scholarship and relates to the fact that <<comparatists invariably privileged similarity. Some even claimed that quite different laws could not be meaningfully compared at all>>(57). The debate over similarity and difference in comparative law is a long one and outside the scope of our analysis(58). Still, the tendence of the scholarship to look for convergence among legal system with the view to construct a “global law” is something which cannot be overlooked(59). On the contrary, decolonial comparative law and the pluriversal framing of research responds to two opposite purposes: a) to emphasize that there are multiple legal options that need not be unified b) to discover new legal options(60).

III. DECOLONISING THE DOING: INTERDISCIPLINARITY AND GOING TO (AND WITH) THE SOUTH

Moving from the framing to the core of research activity brings about the question of what scholars of comparative (constitutional) law do when they research, what kind of methods they use and how those methods can be decolonised. Comparative scholarship is not a monolith: the discipline was actually inflamed by huge debates from its birth onwards, and this despite being a “younger” field compared the rest of legal scholarship (officially born “only” in 1900)(61). Still, it cannot be denied that the discipline has long been influenced by a conception of “law” that tends to be monist, statist and positivist(62). If such standpoints have the merit of making the work of the comparative legal scholar easier, allowing him or her to easily move from Italian to German, Canadian, Cuban and Namibian laws in just one click, read and juxtapose the black letter before drawing conclusions, the scholarship has often expressed doubts about the capacity of such approaches to really grasp how the societies at study are actually regulated. This holds especially true for the legal systems of the global south, which have a history of colonial legal imposition and were not the cradle and center of more than two centuries of legal positivism.

As pointed out by Menski <<The almost irresistible tendency of comparative lawyers has been to translate roughly equivalent (or so it appears) concepts from two or more legal systems and then to contrast them, rather than to analyze their respective socio-legal environments>>(63). Moreover, the most known and cited manual of comparative law precises that <<the solutions we find in the different jurisdictions must be cut loose from their conceptual context and stripped of their national doctrinal overtones so that they may be seen as purely in the light of their function, as an attempt to satisfy a particular legal need>>(64). Currently, the majority of the comparative scholarship (at least in Italy) acknowledges the necessity of understanding the broader social context of the comparative case. Still, though, what is actually rewarded by the academic system is writing often, extensively and about as many legal systems as possible, even better if the researcher is able to develop wider and comprehensive categories and classifications. Such incentives are hardly compatible with a thorough analysis of the foreign context.

The decolonisation of comparative law requires addressing such gap. As Menski stresses out <<Studying ‘black letter law’ does not automatically create a plurality-conscious understanding of law; rather it impedes it>>(65). Moreover, <<In the process, they [the comparatists] actually fail to ask the most fundamental questions about their subject, and remain unable to appreciate the ’true’ nature of the foreign legal systems they study>>(66). Instead, as Hooker already argued in 1975, <<legal systems typically combine in themselves ideas, principles, rules, and procedures originating from a variety of sources, adding that’[b]oth in the contemporary world and historically the law manifests itself in a variety of forms and a variety of levels>>(67). Law is therefore rooted in the broader context, and to grasp the reality of foreign law in decolonial terms (especially the law coming from the global south) it is necessary to develop a profound knowledge of its socio-cultural background.

Law itself is a <<social process(68)>> or, at the very least, a field that is only <<semi-autonomous(69)>> from its milieu: constitutions, and especially those of the global south, <<neither originate nor operate in a vacuum. Their import cannot be meaningfully described or explained independent of the social, political, and economic forces, both domestic and international, that shape them>>(70). For this reason, according to Menski, the comparative legal scholar cannot abstain from committing to interdisciplinarity and delving into every relevant social and cultural field, in the view that <<to master the whole legal system of one society, procedural and substantive, one must master the whole institutional system of that society from citizenship and political place to property and economic relations, from birth to death, and from dispute to peaceful transaction>>(71). The former applies to all legal systems, but especially for those of the global south, for which just looking at the statutory law often leads to only scratching the surface, when not to open misinterpretation. Acknowledging this reality makes the work of the comparative legal scholar dealing with the global south a particularly difficult one and forces the researcher to consider the following question: <<how can we understand global law if the necessary evidence is not found in books and on websites, but mainly in the minds of people and in their daily actions, which lawyers find difficult to research>>(72)?

The answer is double-folded and can be synthesized as it follows: going to the South and going with the South. In his chapter on “Decolonial Theory and Comparative Law”, Roger Merino frames the issue in the following terms: <<Rather than simply conceiving of indigenous peoples as norm takers, who historically have been obliged to resist, adapt, or appropriate liberal legality, today they might be conceived as norm makers, by promoting new national and global legal frameworks and institutions embedded in indigenous thinking. Methodologically, this operation requires two efforts: to engage with critical indigenous and Southern scholars and/or to develop on the ground research with legal activists and norm entrepreneurs to avoid generalisations, essentialisation, or reductionism(73)>>.

In particular, the research on the ground not only may help the researcher facing her own biases, but also allows to co-produce research with social actors on the ground, provided that the researcher employs <<critical methodological tools from the social sciences rather than merely discursive and textual analysis (or ‘doctrinal’ analysis in legal jargon)(74)>>. In this regard, even though the discipline has undeniably been dominated by discursive/textual and quantitative analysis, there are examples of comparative legal projects employing qualitative fieldwork: the scholarship on theory and methods in this area can be a huge support to the legal scholars who wants to employ such methodologies in their own research(75). Just to mention, the last edition of the Oxford Handbook of Comparative Law dedicates an entire chapter to qualitative fieldwork, which conveys a deep review of the literature while problematizing the issue through their own project on the labour dispute resolution system in Southeast Asia(76).

Certainly, engaging in qualitative fieldwork complicates the activity of the comparative legal scholars, both from an academic point of view as well as at the personal level. On the former, the researcher will probably need effort in order to acquire the methodologies of social sciences and dealing with the ethical and epistemological challenges of the field. On the latter, needless to say that the times and the conditions of fieldwork are at least “challenging” for personal and family life. Still, such experiences provide for the possibility to practically decolonise comparative studies by conveying perspectives on the global south actually coming from the global south, as well as the opportunity for the researcher to dismantle her own research biases and ways of thinking. In these terms, the very issue of comparability may become the result of ethnographic inquiry, instead of its starting point(77). Still, it is not the fieldwork activity alone that can guarantee the dismantling of ethnocentrism, not when <<the comparatist sets out to travel and study the foreign but remains mentally in the local station or, upon her arrival in another country, never really leaves the train assuming that there are no other places in the world where things could be different from home>>(78).

As far as it concerns going with the South, the expression is here intended to cover two distinctive, albeit connected, issues: the first is “listen and amplify southern voices”, while the second, more connected with aspects of fieldwork research, relates to issues of relationality and non-extractive methodologies. As Merino observes, it is not uncommon among comparative legal scholars addressing the global South to do so by mainly citing global North Scholarship: on the contrary it is only by <<giving voice to the epistemology of the global south>> that we may aim to <<replacing homogeneity with plurality, recognising and appreciating non-state law, and integrating non-formal law>>(79). In this view, going with the South means reading and building collaboration with Southern and indigenous researchers when approaching indigenous and southern issues(80).

Regarding the second meaning of going with the south, this has to do with the fieldwork. While he was holding a seminar at the University of Edinburgh, David Schlosberg of the University of Sydney shared an anecdote on its first field-work. He was a young researcher having its very first interview with a member of a community, when this person he was supposed to interview suddenly asked him: <<so what is your research going to do for us?>>(81). Professor Schlosberg admitted that he was not quite expecting that and that he didn’t really know what to answer back then. The rest of the seminar he shared his view on how research should be able to <<give back to the communities>> instead of just extracting. The indigenous researcher Lauren Tynan explains the issue with the following terms: <<Extractivism sits at the core of colonialism; the extraction of knowledge, labour, specimens, resources, relationships and research. Extractivism can seep into research practices, often in the quest to produce ‘original’ research>>(82). The author opposes to the paradigm of extracting - <<taking without consent, without thought, care or even knowledge of the impacts that extraction has on the other living things in that environment>> - a paradigm of relationality which is not only a way to see reality but also to feel it - <<beyond understanding the concept of relationality, to feel the world as kin is to enact a relational ethos and the responsibilities and accountabilities that accompany it>>(83).

This means in primis that the researcher has a responsibility: rather than detached, she finds herself relationally engaged. In this way, non-extractive methodologies <<enable the construction of knowledge ‘with’ the participants/individuals of a particular social context, rather than ‘about’ specific individuals, in a distant manner, and brought forth by the researcher>> In the words of Merino <<the decolonisation of research changes the focus from the researcher’s personal aims to the community’s social and political agenda, not only to provide a space for listening to indigenous voices, but also to construct a truth from the community through relations of trust, collaboration, and reciprocity>>(84).

IV. DECOLONISING AIMS AND RESULTS: ON TRANSLATION, BEST PRACTICES AND EXPLORATIVE MINDSETS

Coherently with the decolonisation of the framing (epistemology) and the doing (methodology) this last part aims at shedding light on what could be mean to decolonise the ending part of the research, whether it means its results, its dissemination or its impacts. This means questioning both the possibilities as well as the aims that comparative law is able to achieve through decolonisation. According to the tradition, comparative law is supposed to produce <<an objective report>> of foreign laws(85). A critical position such as that Pierre Legrand would instead stress that <<foreign law’s reality lies beyond where the comparatist can reach even as he remains too close to be able to detach himself from it>>, but still <<though comparison is structurally unable ever to grasp otherness – the other law or other-in-the-law is not at hand, not present; rather it is not-at-hand, not-present – the comparative motion can unfold as a productive practice>>(86). The reason of Legrand’s discomfort in the possibility of comparative law to really grasp foreign law is that the work of the comparatist is basically that of a translator, and just like any translation, it cannot escape from producing just one among many of the possible ways of narrating the original meaning(87). The idea is that comparative legal scholars produce narratives or, put in other terms <<the project of philosophies of comparative law always conditions its possible answers>>(88).

Decolonial approaches, in light of their effort to create pluriversality, cannot embrace the belief that any such things as “an objective law” exists, but neither can they be completely in line with a purely relativistic stand on law as just a narrative. Decoloniality, instead, reframes the issue with another vocabulary: instead of asking whether the result of comparative research is an objective report or a narrative, or asking how many narratives are there, it poses a question of who: <<whose narrative? whose law? whose justice?>>. As underlined by Kessi and others in relation to decolonising african studies: <<The first and last question of decolonial work is whom does it serve and what (or whom) does it centre?>>(89) Instead of aspiring to objectivity and detachment, decolonial methodologies are inseparable from the position they assume and the ethical commitment that defines them: discovering and echoing the voices that have been silenced by colonialism which are still being silenced by coloniality. As Merino underlines: <<while law served dispossession and the accumulation of resources and a labour force, at the same time, it would also provide a way for the colonised to resist even in the most oppressive colonial regimes. The legal arena thus becomes a place of (albeit unequal) contest among the diverse interest groups in colonial and postcolonial societies, rather than a simple form of control and imposition>>(90).

It is precisely that struggle and that “invisible law” that is the object of decolonial comparative legal scholarship. That is what the comparison is directed to make emerge: as long as the aim is respected, no strict rules exist on whether the comparison should be framed around different states, different legal systems or different subjects, or simply being “foreign law” which the comparatist interprets and translates in her own terms. Needless to say, the results of a decolonial comparative analysis will not consist in the identification of best practices, but rather in <<the discovery of alternative perceptions of the world and justice and of different practices of solving practical problems by accommodating competing interests as well as meeting the prerequisites of substantive justice>>(91). This may be done in many ways, including but not limited to narrativity and legal storytelling(92). Finally, embracing decolonial comparative research means a shift to an explorative mindset, a form of <<deambulation>> into diverse experiences and positionalities(93). In other worlds, <<the comparatist is not a seeker of legal truth and guardian of “law’s juridical component,”but rather, “barefoot” “sleeping under the stars . . . very curious.”>>(94).

V. FINAL REMARKS

In a world of polycrisis and deep turbulence, the contribution has explored and discussed the scholarship relating to the decolonisation of comparative legal studies, particularly constitutional law. The analysis here proposed stems from a conception of coloniality as an epistemological phenomenon that continues to shape the production of knowledge and meaning, including in the legal sphere. From such acknowledgment the view is that decolonising law is a matter of justice and the way out of a north-south divide that is more-then-ever present and visible. Moreover, such enterprise is not only desirable but necessary to navigate a reality of wicked problems, where new solutions are needed, and epistemological abysses are a luxury that we as a society can no longer afford. By framing the question of how to decolonise comparative legal methodologies in practical terms, and following the stages of research (the framing, the doing and the aftermaths), the contributioin has aimed at building up a practical toolkit for any comparative legal scholar interested in decolonising his or her own research. As it emerges from the text, framing the research brings about the need to acknowledge one’s own position, de-linking from that position and embrace a pluriversal epistemology. Subsequently, the discussion on doing research has argued the need to acquire qualitative methodologies to conduct field research and the necessity to engage with southern and indigenous scholarship, as well as employing relational and non-extractive approaches. Finally, the need of reconsidering the very conception of results and research impacts has been put forward through a discussion of mindset shifts and explorative attitudes.

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NOTAS:

(1). R. Michaels, “The legal legacy of the Colonial Era”, MaxPlanckForschung, n. 4, 2021, pp. 16-21.

(2). A. Quijano, “Coloniality and Modernity/Rationality”, in Aníbal Quijano: Foundational Essays on the Coloniality of Power, ed. W. D. Mignolo, R. Segato and C. E. Walsh, Duke University Press, New York, USA, 2024, pp. 73-84.

(3). A. Quijano, “Coloniality and Modernity/Rationality”, cit., p. 75.

(4). R. Michaels, “The legal legacy of the Colonial Era”, cit., p. 20.

(5). https://archive.doingbusiness.org/en/rankings (access 31.05.2024).

(6). The Polytecnic of Zurich has recently withdrawn from Times Higher Education Ranking. The Swiss university is not the first one to boycott THE ranking, preceded by Indian Institutes of Technology of Bombay, Madras, Delhi, Roorkee, Kanpur, and Kharagpur since 2020, from Renmin University of China, Nanjing University, and Lanzhou University in 2022 and the University of Utrecht in 2023.

(7). M. Trouillot, “North Atlantic Universals: Analytical Fictions, 1492–1945”, South Atlantic Quarterly, Vol. 101, n. 4, 2001, pp. 839-847, as cited by Legrand in P. Legrand, Negative Comparative Law: A Strong Programme for Weak Thought, Cambridge University Press; 2022, pp. 217-228.

(8). P. Fitzpatrick, The Mythology of Modern Law, Routledge, London and New York, 1992.

(9). There is a huge scholarship on the role of both science and law in conveying and reproducing coloniality. See F. Capra, U. Mattei, The Ecology of Law: Toward a Legal System in Tune with Nature and Community, Berrett-Koehler Publishers, 2015.

(10). Just to have an idea of decolonising scholarship from different social sciences see B. Reiter, Decolonizing the Social Sciences and the Humanities. An Anti-Elitism Manifesto, Routledge, 2022.

(11). In the words of Folúkẹ́ Adébísí, <<Euro- modern legal knowledge can shroud in mystery its own complicity in (re)producing inequalities in the world and so present itself innocent of the violent societal abstractions committed in its name>> (F. Adébísí, Decolonisation and Legal Knowledge: Reflections on Power and Possibility, Bristol University Press; 2023, p. 7).

(12). J. Barreto, “Decolonial thinking and the Quest for decolonising human rights”, Asian Journal of Social Science, Vol. 46, n. 4, 2018, pp. 484-502.

(13). G. Parola, L. R. F. Moreira DA COSTA, M. P. Poto, “Is a decolonial law possible? Epistemologies of the south and constitutional law”, Revista Juridica, Vol. 02, n. 69, 2022, p. 663.

(14). G. Parola, L. R. F. Moreira DA COSTA, M. P. Poto, “Is a decolonial law possible? Epistemologies of the south and constitutional law”, cit., p. 669.

(15). G. Parola, T. Nogueira, T. M. C. Britto, “Legal pluralism: an approach from the new Latin American constitutionalism and the jury of the indigenous court”, Revista de Investigações Constitucionais, Vol. 6, n 3. 2019, pp. 621-645.

(16). L. Salaymeh, R. Michaels, “Decolonial Comparative Law: A Conceptual Beginning”, Rabel Journal of Comparative and International Private Law, Vol. 86, n. 1, pp. 166-188, 2022, p. 169.

(17). G. Frankenberg, Comparative Constitutional Studies, Edward Elgar Publishing, Cheltenham, UK, p.75.

(18). R. Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law, Oxford University Press, Oxford, 2014, p. 15.

(19). R. Michaels, “The Legal Legacy of the Colonial Era”, cit., p. 18.

(20). E. Zitske, “Decolonial Comparative Law: Thoughts from South Africa”, Rabel Journal of Comparative and International Private Law, Vol. 86, n. 1, 2022, pp. 189-225.

(21). E. Zitske, “Decolonial Comparative Law: Thoughts from South Africa”, cit., p. 194.

(22). E. Zitske, “Decolonial Comparative Law: Thoughts from South Africa”, cit., p. 219.

(23). E. Zitske, “Decolonial Comparative Law: Thoughts from South Africa”, cit., p. 224.

(24). L. Salaymeh, R. Michaels, “Decolonial Comparative Law: A Conceptual Beginning”, cit., p. 176.

(25). P. Legrand, Negative Comparative Law: A Strong Programme for Weak Thought, cit., p. 221.

(26). M. J. Albert, Navigating the Polycrisis: Mapping the Futures of Capitalism and the Earth, The MIT Press, 2024.

(27). J. Comaroff, J. L. Comaroff, Theory from the South: Or, How Euro-America is Evolving Toward Africa, Routledge, 2012, p. 1.

(28). P. Legrand, Negative Comparative Law: A Strong Programme for Weak Thought, cit., p. 227.

(29). G. Frankenberg, Comparative Constitutional Studies, cit., p. 85.

(30). L. Salaymeh, R. Michaels, “Decolonial Comparative Law: A Conceptual Beginning”, cit., p. 186.

(31). P. Fitzpatrick, The Mythology of Modern Law, cit., p. 13.

(32). P. Dann, R. Michael Riegner, M. Bönnemann (eds), The Global South and Comparative Constitutional Law, Oxford University Press, Oxford, 2020, p. 3.

(33). B. de Sousa Santos, The End of the Cognitive Empire: The Coming of Age of Epistemologies of the South, Duke University Press, New York, USA, 2018, p. 8.

(34). W. Fikentscher, Modes of Thought: A Study in the Anthropology of Law and Religion, Mohr Siebeck, Tübingen, 1995, p. 117.

(35). G. Frankenberg, Comparative Constitutional Studies, cit., p. 82.

(36). E. W. Said, Orientalism, Penguin Books, 1978, p. 7.

(37). G. Frankenberg, Comparative Constitutional Studies, cit., p. 82.

(38). G. Frankenberg, Comparative Constitutional Studies, cit., p. 82.

(39). P. Legrand, Negative Comparative Law: A Strong Programme for Weak Thought, cit., p. 227.

(40). P. Legrand, Negative Comparative Law: A Strong Programme for Weak Thought, cit., p. 221.

(41). F. Adébísí, Decolonisation and Legal Knowledge: Reflections on Power and Possibility, p. 6.

(42). S. Glanert, “The Comparatist and the illusion of autonomy”, in Rethinking Comparative Law, ed. S. Glanert, A. Mercescu, G. Samuel, Edward Elgar Publishing, 2021, pp. 31-60.

(43). M. Trouillot, “North Atlantic Universals: Analytical Fictions, 1492–1945”, cit., p. 853.

(44). S. Glanert, A. Mercescu, G. Samuel, Rethinking Comparative Law, cit., p. 32.

(45). S. Glanert, A. Mercescu, G. Samuel, Rethinking Comparative Law, cit., p. 34.

(46). P. Legrand, Negative Comparative Law: A Strong Programme for Weak Thought, cit., p. 4.

(47). G. Frankenberg, Comparative Constitutional Studies, cit., p. 91.

(48). B. de Sousa Santos, The End of the Cognitive Empire: The Coming of Age of Epistemologies of the South, cit., p. 154.

(49). W. D. Mignolo, “DELINKING”, Cultural Studies, Vol. 21, n. 2-3, 2007, pp. 449-514.

(50). B. de Sousa Santos, Epistemologies of the South: Justice against Epistemicide, Routledge, New York, 2016, p. 44.

(51). W. D. Mignolo, “Foreword. On Pluriversality and Multipolarity”, in B. Reiter, Constructing the Pluriverse: The Geopolitics of Knowledge, Duke University Press, New York, USA, 2018, p. xii.

(52). R. Michaels, “The Legal Legacy of the Colonial Era”, cit., p. 20.

(53). R. Michaels, “The Legal Legacy of the Colonial Era”, cit., p. 20.

(54). W. D. Mignolo, R. Segato, C. E. Walsh (eds), Aníbal Quijano: Foundational Essays on the Coloniality of Power, cit., p. 83.

(55). W. D. Mignolo, “Foreword. On Pluriversality and Multipolarity”, cit., p. x.

(56). W. F. Menski, Comparative Law in a Global Context: The Legal Systems of Asia and Africa, Cambridge University Press, 2006, p. 5.

(57). G. Frankenberg, Comparative Constitutional Studies, cit., p. 68.

(58). G. Dannemann, “Comparative Law: Study of Similarities or Differences?”, in The Oxford Handbook of Comparative Law, M. Reimann, R. Zimmermann (eds), Oxford University Press, 2019.

(59). R. Hirschl, “Opting Out of “Global Constitutionalism”, The Law & Ethics of Human Rights, Vol. 12, n. 1, 2018, pp. 1-36.

(60). L. Salaymeh, R. Michaels, “Decolonial Comparative Law: A Conceptual Beginning”, cit., p. 186.

(61). For a synthetic reconstruction and overview see A. Somma, Introduzione al diritto comparato, Giappichelli, 2019.

(62). W. Twining, Globalisation & Legal theory, Butterworths, London, 2000, p. 232.

(63). W. F. Menski, Comparative Law in a Global Context: The Legal Systems of Asia and Africa, Cambridge University Press, 2006, cit., p. 67.

(64). K. Zweiger; H. Kötz, An Introduction to Comparative Law, Oxford University Press, 1998, pp. 36-37.

(65). W. F. Menski, Comparative Law in a Global Context: The Legal Systems of Asia and Africa, cit., p. 69.

(66). W. F. Menski, Comparative Law in a Global Context: The Legal Systems of Asia and Africa, cit., p. 66.

(67). M. B. Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws, Claredon Press, Oxford, 1976.

(68). F. S. Cohen, “Transcendental Nonsense and the Functional Approach”, Columbia Law Review, Vol. 35, n. 6, 809-849.

(69). S. F. Moore, Law as a Process, Routledge & K. Paul, 1978, p. 55.

(70). R. Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law, cit., p. 152.

(71). S. F. Moore, Law as a Process, cit., pp. 214-215.

(72). W. F. Menski, Comparative Law in a Global Context: The Legal Systems of Asia and Africa, cit., p. 55.

(73). R. Merino, “Decolonial Theory and Comparative Law”, in The Cambridge Handbook of Comparative Law, M. Siems, P. J. Yap (eds), Cambridge University Press, 2024, p.410.

(74). R. Merino, “Decolonial Theory and Comparative Law”, cit., p. 416.

(75). J. Starr, M. Goodale (eds), Practicing Ethnography in Law: New Dialogues, Enduring Practices, Palgrave Macmillan, 2002.

(76). P. Mahy, R. Mitchell, J. Howe I. Landau, C. Sutherland, “Qualitative Fieldwork”, The Cambridge Handbook of Comparative Law, M. Siems, P. J. Yap (eds), cit.,113-132.

(77). T. Scheffer, J. Niewöhner, Thick Comparison: Reviving the Ethnographic Aspiration, Brill, 2010, p. 2.

(78). G. Frankenberg, Comparative Constitutional Studies, cit., p. 81.

(79). R. Merino, “Decolonial Theory and Comparative Law”, cit., p. 416 referring to L. Salaymeh, R. Michaels, “Decolonial Comparative Law: A Conceptual Beginning”, cit.

(80). To avoid essentialization it is important to stress out that <<It is not enough to engage with scholars located in the South because this does not ensure, at all, a decolonial analysis. Most Southern scholars reproduce the colonial canon in comparative law. It is crucial to identify which scholars think from a decolonial episteme. This means, as has been already noted, that the South is not a geographical category but a political-philosophical category. Or, in Santos’s words, there is a South in the North and a North in the South. To follow this strategy, comparative law must pay special attention to indigenous scholars who have been most affected by the colonial bias of the discipline>>. R. Merino, “Decolonial Theory and Comparative Law”, cit., p. 417.

(81). D. Schlosberg (University of Sydney), Climate turbulence, justice, and democratic experimentation, Lecture, University of Edinburgh, 5 April 2024.

(82). L. Tynan, “What is relationality? Indigenous knowledges, practices and responsibilities with kin”, Cultural Geographies, Vol. 28, n.4, p. 598.

(83). L. Tynan, “What is relationality? Indigenous knowledges, practices and responsibilities with kin”, cit., p. 600.

(84). R. Merino, “Decolonial Theory and Comparative Law”, cit., p. 420.

(85). K. Zweiger; H. Kötz, An Introduction to Comparative Law, cit., p. 34.

(86). P. Legrand, Negative Comparative Law: A Strong Programme for Weak Thought, cit., p.3.

(87). P. Legrand, Negative Comparative Law: A Strong Programme for Weak Thought, cit., p. 40.

(88). K. Brayson, “Generating Comparison-in-Law: Embodied Epistemologies, For the Love of Knowledge”, The Philosophies of Comparative Law, Vol. 8, n. 2, 2021, p.56.

(89). S. Kessi, Z. Marks, E. Ramugondo, “Decolonizing African Studies”, Critical African Studies, Vol. 12, n. 3, p. 271.

(90). R. Merino, “Decolonial Theory and Comparative Law”, cit., p. 409.

(91). E. Melissaris, “The more the merrier? A new take on legal pluralism”, Social and Legal Studies, Vol. 13, n. 1, p. 76.

(92). A. Griffith, “Doing Ethnography: Living Law, Life Histories, and Narratives from Botswana”, in Practicing Ethnography in Law: New Dialogues, Enduring Practices, cit., pp. 160-184.

(93). H. Lim, A. Bottomley, Feminist Perspectives on Land Law, Routledge-Cavendish, New York, 2007.

(94). K. Brayson, “Generating Comparison-in-Law: Embodied Epistemologies, For the Love of Knowledge”, cit., p. 53, citing P. Legrand, “European Legal Systems Are Not Converging”, The International and Comparative Law Quarterly, Vol. 45, n. 1, 1996, pp. 60-61 and L. Siliquini-Cinelli, “Experience vs. Knowledge in Comparative Law: Critical Notes on Pierre Legrand’s “Sensitive Epistemology””, International Journal of Law in Context, Vol. 16, n. 4, pp. 443-445.