—Richard Albert, Professor of World Constitutions and Director of Constitutional Studies, The University of Texas at Austin
In “Comparative Law and Decolonizing Critique,” Professor Sherally Munshi suggests four paths for comparative law scholars to reorient their research toward decolonizing legal scholarship.
Munshi’s paper is a call to action for all of us engaged in comparative law, especially for scholars of comparative constitutionalism, given that constitutions have historically often been tools of colonization, suppression, and the violent subordination of indigenous self-government.
It is worth considering how Munshi’s suggestions might be deployed to make progress on decolonizing comparative constitutionalism.
Munshi observes that many scholars are seeking to broaden the lens through which we study legal systems, but that comparative law still “remains resolutely Eurocentric” (p. 224). Munshi explains:
The Eurocentrism of academic study, in the United States at least, reflects the different histories through which Europe and non-Europe entered American universities. Both comparative literature and comparative law in the United States were built by European immigrants, many of them intellectuals fleeing authoritarian regimes. Asia, Africa, and Latin America, by contrast, entered the university primarily through area studies departments, which were tasked primarily with producing knowledge of the Third World for eventual strategic use. As Gayatri Spivak puts it, “U.S. comparative literature was founded on inter-European hospitality, [while] Area Studies had been spawned by interregional vigilance.” Comparative literature has widened its purview in the past several decades— partly in response to recommendations resulting from one of the discipline’s regular self-examinations, and partly as a result of the powerful role that postcolonial critique has played in expanding the scope of not just literary studies but, again, the humanities in general. Comparative law, by contrast—and despite the efforts of many in the field—remains resolutely Eurocentric. (p. 224; internal citations omitted)
For Munshi, “Eurocentrism” is more than a geographical restriction. It is an intellectual self-limitation that restricts our understanding of authority:
[I]n the broadest sense, Eurocentrism refers to the general habit of attributing authority to only certain forms of knowledge—what we might generally refer to as western rationality—while disregarding and disparaging others. The logical positivism of which Legrand complains is part and parcel of western rationality; and as Legrand suggests of positivism, Eurocentrism is pernicious in that it tends to insulate itself from counter-knowledge, remains assured of its own truth, and naturalizes its own authority. (p. 226)
This problem is evident in comparative constitutionalism, too.
One way remedy to the problem—the problem that “there is painfully little discussion about legal cultures outside Europe” (p. 225)—is for scholars of comparative constitutionalism to look beyond what Ran Hirschl has called the “usual suspects” in comparative scholarship.
So many jurisdictions remain absent as comparators and illuminators in comparative constitutional scholarship. Yet we have so much to learn from their experiences. Of course, there are more and more and more scholars trying to decenter Europe in their research and, in so doing, to encourage research into understudied, overlooked, and often excluded regions, nations, and peoples in our vast world. But much work remains to be done.
Munshi suggests also that “comparative law might unsettle an entrenched nationalism in legal discourse by promoting study of not just the foreignness that one discovers beyond national borders, but the foreignness that lies within a nation’s borders.” (p. 229) This kind of comparative law—which Munshi describes as “minor comparativism”—has led scholars to “shatterthe conventional framework of analysis beyond the nation-state to explore the many relationships that minoritized subjects forge with one another across national boundaries.” (p. 229)
There is much to gain from this approach to comparative law.
For one, it can help build coalitions across jurisdictions and offer an additional way to strengthen burgeoning social justice movements as they form. As Munshi writes, “nation-centered accounts of minorities  efface the historic relationships between racialized minorities as well as their potential collaborations, particularly with respect to their shared confrontation with colonialism and its legacies.”
Scholars of comparative constitutionalism could learn from efforts in “minor comparativism” currently underway in other fields:
A number of scholars working across national, linguistic, and disciplinary boundaries have begun to explore the dynamic relationships—collaborations as well as contestations—between minoritized groups, in settings that scale from the intimate to the global. These scholars recast minorities within an expanded and complicated field of transnational networks, diasporic attachments, and interethnic solidarity. Intellectual and political movements that had previously been rendered scattered and discrete—mainly by disciplinary conventions that stabilize the study of national histories and cultures—have been brought together within experimental frameworks that might generally be described as transnational. (p. 230)
Munshi’s third and fourth suggestions are to take an approach that is “relational” as opposed to comparative, and to recognize that all research in law is comparative.
Munshi draws from the work of David Theo Goldberg to stress the usefulness of a relational approach in the context of race, for example, explaining that “a relational approach to race and racism allows us to recover the colonial roots of contemporary, globalized racial forms. At the same time, it reminds us that race cannot be understood in isolation or as an aberration; it saturates the nation-state and its organization of the world.” (p. 233)
This fits well with Munshi’s other suggestion that scholars of comparative law might consider “worlding” their research, or situating the law of a time and place as it presently exists against the larger and more socially just backdrop of what that law could be at its best. To put it in Munshi’s own words: to contrast “the variance between law’s image of the world and others’ experience of it, and the variance between law and justice.” (p 224)
In the field of comparative constitutionalism, this approach might mean changing how we evaluate the design or reform of a constitution. Rather than comparing it to a standard model in the world—once the United States Constitution, but now less so—we might turn instead to an ideal model of the kinds of constitutional arrangements that should exist in a just society.
Professor Sherally Munshi’s paper shines a light on the many cultural, political, and social hierarchies embedded deeply within law and specifically within the scholarly enterprise of comparative law. It is a must-read for all scholars of comparative law, and it has especially important applications and urgency for scholars of comparative constitutionalism.
Suggested Citation: Richard Albert, Decolonizing Comparative Constitutionalism, Int’l J. Const. L. Blog, July 26, 2021, at: http://www.iconnectblog.com/2021/07/decolonizing-comparative-constitutionalism.