20 - Decolonial Theory and Comparative Law

Summary

The colonial question has not been sufficiently addressed by comparative legal studies. Although more scholars acknowledge the Eurocentric bias of the discipline, a radical rethinking of its methods and assumptions has not emerged yet. To contribute to decolonising comparative law, this chapter proposes two strategies. First, engaging with indigenous or Southern scholars that think from a decolonial episteme. These scholars often address comparative issues from their own experience of past colonialism and present coloniality. Second, engaging with social actors on the ground through decolonial methodologies. Engaging with the political agendas of local and indigenous peoples and activists allows a deep understanding of their concerns and aspirations. To explain the implications of these strategies, the chapter discusses the issue of norm diffusion in human rights debates. Viewed through a decolonial lens, this would suggest that indigenous and local people are norm makers rather than being mere norm takers or beneficiaries. Then, they either reinterpret the norms or produce their own norms. Some of these norms are local and global at the same time. They are embedded in their own local thinking and practice, but also are emerging as valuable legal models to address global social and ecological crises.