Abstract

Comparative lawyers have traditionally felt compelled to assert the utility of their craft for improving legal scholarship and innovation. Yet, these humanistic and functional arguments often forget the deleterious effects that legal comparisons can have when appropriated by various actors who are uninterested in legal self-reflection or improvement but instead seek to suppress domestic critiques. Such suppression is enacted by delegitimizing domestic critiques through contrasting negative aspects of foreign legal practice with idealizations of domestic law. This dynamic was classically highlighted in legal anthropologist Laura Nader’s work on the use of cross-cultural legal comparison to attack feminist critiques in both Euro-American and Islamic societies. This potential “dark side” of comparative law is increasingly at play in the rise of global authoritarianism and democratic backsliding. The pervasiveness of this “dark side” has in part been obscured by the continued use of old geographical proxies such as “the West” or “Orientalism” to stand-in for the dangers of legal comparison in cross-cultural contexts. The Sino-American relationship, in particular, highlights how the use of these geographical short-hands blunts proper focus on the evolving global power dynamics in which cross-cultural representations are made by authoritarian interests. A focus on power over geography, moving beyond asserting new geographical proxies such as “the Global South” or “Occidentalism,” is both analytically necessary and ethically demanded to help circumvent such authoritarian abuse. While rigorous comparative legal methods may in fact be salutary for understanding and improving modern law, it is incumbent on comparative lawyers to remain cognizant of how this potential “dark side” acts to repress domestic critiques even as they may conceive of their work as transcending traditional critiques of ethnocentrism.