Sociology Project

(Monsoon Semester, 2016)

Paper Title: Ethnocentrism and Law

Submitted By: Vishal Hablani

ID: 216057

Word Count: 1486

(Excluding footnotes and references)

1
Ethnocentrism and Law

Introduction
Ethnocentrism means the evaluation of other cultures with the measuring and prevailing in
one’s own-culture, which leads to the notion that the culture traits which are similar to those
of the observers are evaluated as better than those which are quite different and develops an
attitude where a person attributes one’s own culture as superior to other.1 This attitude makes
it quite difficult for us to analyse what is perceived to be right in our eyes can be quite wrong
from other’s perspective. In the present scenario ethnocentrism affects law substantially, as
law is used as a tool to promote ethnocentrism in a society which questions its legitimacy on
the international front which accounts for diverse cultures.

Rationale
Where do law and legal order begin, and where does culture end? A broad interpretation of
culture renders it difficult, if not impossible, to delineate the two clearly.2 Law and order
must not be biased towards a particular culture in a society, law is established to govern
people and not cultures. Analysing the way according to which legal system and
ethnocentrism work in a society will give us an insight as to how ethnocentrism is penetrated
in the formation of law and will help in finding a possible solution to this problem.

Research Questions
This paper aims to analyze the approach which can be adopted to frame law in such a manner
so as to avoid the element of ethnocentrism while its formation and implementation. The
research questions are as follows:

1. What is Comparative Law?

1
Farooq. 2013. “Ethnocentrism Meaning, Definition, Examples & Effect on Society”, Study Lecture Notes.
Retrieved October 14, 2016 (http://www.studylecturenotes.com/basics-of-sociology/ethnocentrism-meaning-
definition-examples-effect-on-society).
2
King. 1997. “Comparing Legal Cultures in the Quest for Law's Identity.” Comparing Legal Cultures 119, 132

2
 2. How Comparative Law is perceived while formation of law?
3. Can Comparative Law be used as a measure to combat legal ethnocentrism?

Methodology
In order to address the problem presented, this research paper has used certain secondary
sources to ascertain the sociological perspective towards the legal ethnocentrism. Research
surveys conducted by various research organizations are relied upon as a credible source of
information. Online databases are used to gather information through journals pertaining to
the topic presented.

Discussion
Comparative law can be termed as the study of legal systems of an area or society in
comparison to other legal systems. In the present scenario it is gaining importance as a
measure for harmonization of laws.

Law is "a particular type of social norms supported by a set of values/ideas under the
legitimate authority/power of a certain social organisations.”3 Law must be considered
different from culture. Comparative law promotes “thinking with another set of legal
concepts and categories, so that we can look back at our own legal world with a sense of it as
newly strange.”4 Comparative law can be thoughtful to the consequence of law, doubtful to
the claim of legal system that it takes into consideration all the social practice and reality, and
deprecatory of law’s discourse of dominance.

The exclusive aim of comparative law is to provide us with a reflection of ourselves, but it
has been observed that it often leads to the ostensible analysis of foreign system. Therefore, it
can act as a tool of prejudice and ethnocentrism. At its worst, comparative law will merely
confirm personally, and systematically preconceived notions about the comparativist’s own

3
Chiba. 1998. “Other Phases of Legal Pluralism in the Contemporary World.” Ratio Juris 11(3):228-45

4
Scheppele. 1996. “The History of Normalcy: Rethinking Legal Autonomy and the Relative Dependence of Law
at the End of the Soviet Empire.” Law and Society Review 30(3):627-650
\

3
system, and most distressingly, other legal systems and culture.5 Lawyers are prone to accept
stereotypes and make assumptions about other systems since they are frequently caught by
the thought systems of their own cultures and the way that different disciplinary lens in legal
studies screen out data.6 The affinity towards one’s own system leads to an erroneous
approach that the negative findings are reinterpreted so as to reconcile with the view that
elevates one’s own domestic system. Ethnocentrism of law goes to a greater extent. Karl
Llewellyn aptly said: “Nowhere more than in law do you need armour against that type of
ethnocentric and chronocentric snobbery-the smugness of our own tribe and your own time:
We are the Greeks, all others are barbarians.”7 It has been observed that there is a tendency to
judge other legal systems as inferior, which derives two conclusions: (a) inferior legal system
has nothing to teach superior system and (b) it is justified for a superior system to challenge
and intervene in a inferior system.

The worst scenario of comparative law is becoming reality in today’s world. Rather,
comparative law must develop into a field that provides the necessary bridge between the
domestic critique of the governing order and a more searching analysis of foreign systems so
as to acknowledge the multiple legal realities, values and ways to resolve conflict.8 To
accomplish these goals, the legal community will be required to overcome its complacency
and challenge the assumptions underlying our legal culture and legal system, and "expand our
perceptions to encompass new visions and new modes of vision."9

The practice of comparative law, if given a right direction can help us in overcoming legal
ethnocentrism by equalizing the relationship between the different legal cultures. Its potential
can be exemplified in two situations. The interplay between the legal culture of the host
country and the migrants can illuminate legal changes in both systems, as well as create new,
mixed systems.10 Potential of comparative law can be analysed in such a situation so as to
reconcile the laws of a migrant and host countries and eliminate the problems faced by
migrants due to legal ethnocentrism.

5
Demleitner. 1999. “Combating Legal Ethnocentrism: Comparative Law Sets Boundaries.” Arizona State Law
Journal 31(3):737-762
6
Nader. 1991. Harmony Ideology: Justice and Control in a Zapotec Mountain Village. Stanford, CA: Stanford
University Press
7
Llewellyn. 1981. The Bramble Bush: On Our Law and Its Study. Oxford, London: Oxford University Press
8
Supra, n.5
9
Curran. 1998. “Cultural Immersion, Difference and Categories in U.S. Comparative La.” The American
Journal of Comparative Law 46(1):43-92
10
Supra, n.5

4
Postmodernism and modern jurisprudential movements have revealed the multiple "others" in
our societies and the ways in which law has traditionally disadvantaged them.11 It has been
observed that traditions which are inherited from other dominant legal systems have
influenced actions of migrants. For e.g. the French "headscarf" case exemplifies how a
migrant community challenged the legal conception of the majority culture.12 Here, the
migrant community produced a symbolic equivalent to the dominant religion which elicited a
reaction by the native population that caused the migrants to use the legal tools existing in the
host society to bring about change. The uniqueness of that legal response, however, is lost
without an understanding of the legal culture of the migrants' country of origin. 13 It has been
observed that interplay between host society and migrant has been overlooked by the
traditional analysis laws prevailing in a society. Other examples of clashes between migrant
and "native" norms frequently arise in the criminal context when a migrant faces charge
based on factual circumstances which would not constitute a criminal act in his country of
origin.14

Two different theories namely integration and assimilation guide reception of the migrants
into the host country or society. While assimilation presupposes that the migrant minority
will ultimately disappear in the majority society, integration recognizes limited cultural and
ethnic plurality based on a tolerance of difference, at least as long as the migrants'
distinctiveness does not interfere with their functioning in the receiving country.15 Surprising
fact is that the different cultural traits which come with migrant groups are acknowledged but
no emphasis is given to the law notions that come with them. Nevertheless, both assimilation
and integration doctrines demand that the migrants relinquish their received conception of
law and legal order.16

11
Cook. 1993. “Foreword: Towards a Postmodern Ethics of Service.” Georgetown Law Journal. 81(7):2457-
2474
12
Baines, Cynthia DeBula. 1996. “L'Affaire des Foulards - Discrimination, or the Price of a Secular Public
Education System.” Vanderbilt Journal of Transnational Law.
13
Metcalf. 1996. “Introduction: Sacred Words, Sanctioned Practice, New Communities.” Making Muslim Space
in North America and Europe. 31(1):81-82
14
Eser. 1997. “The Importance of Comparative Legal Research for the Development of Criminal Sciences.”
International Encyclopaedia of Laws. 492-517
15
Brochmann. 1996. European Integration and Immigration from Third Countries, Pensumtjeneste
16
Ibid.

5
It has become necessary to respect the differences that exist in a society and not to abolish
them. By studying the legal responses of migrant communities to the legal order established
by the majority society, comparative law provides insights into the cultural understanding of
the majority of migrant groups as well as the legal systems in the countries from which the
migrants hail and in this way, comparative law allows post-modern jurisprudential
approaches which frequently unravel how law is determined by power within one society to
expand their analyses across national borders. Ultimately, this approach can help in
preserving the legitimacy of law that can be guaranteed only if the current law corresponds
with cultural understanding of the people it governs. Moreover, such a comparative approach
will illuminate the ongoing human rights debate, which is hindered by a lack of cross-
discussion and a lack of understanding of other legal systems.17

Conclusion
Comparative law can live up to its assurance of providing a perspective in a legal system
through the existence of vibrant migrant population from various legal systems in a society.
The understanding of, engagement of, and respect for other legal systems rather than their
tolerance will help us in appreciating culture, religious, legal and gender-based differences to
a far greater extent at home. While culture is relevant to the development of law, comparative
law may be able to help us see the fault lines between law and culture more clearly, whether
in developing a coherent legal response to the arrival of migrants from different legal
backgrounds or in refining the international human rights system.18

Tolerance alone will not suffice since it might merely amount to "smugness, condescension,
contempt for others, and intellectual isolation."19 Ultimately, only that approach of
comparative law will bring us from more accurate knowledge of "the other" to "empathy and
respect in a pluralistic world."20

17
Supra, n.5
18
Ibid
19
Anthony Kronman, Yale Law School Welcoming Address, 1997: The Character of Our Community 10
(1997) (transcript available at the Yale Law School) (discussing the difference between tolerance and sympathy
when creating a real community at the Yale Law School).
20
Sharma. 1994. Today’s Woman in World Religions. New York: State University of New York Press

6
 BIBILIOGRAPHY
BOOKS:

Harmony Ideology: Justice and Control in a Zapotec Mountain Village (1991)

authored by Nader.

The Bramble Bush: On Our Law and Its Study (1981) authored by Llewellyn.

European Integration and Immigration from Third Countries (1996) authored by

Brochmann.

ARTICLES IN JOURNALS:
King. 1997. “Comparing Legal Cultures in the Quest for Law's Identity.”
Comparing Legal Cultures.
Chiba. 1998. “Other Phases of Legal Pluralism in the Contemporary World.”
Ratio Juris
Scheppele. 1996. “The History of Normalcy: Rethinking Legal Autonomy and the
Relative Dependence of Law at the End of the Soviet Empire.” Law and Society
Review
Demleitner. 1999. “Combating Legal Ethnocentrism: Comparative Law Sets
Boundaries.” Arizona State Law Journal
Curran. 1998. “Cultural Immersion, Difference and Categories in U.S.
Comparative La.” The American Journal of Comparative Law
Cook. 1993. “Foreword: Towards a Postmodern Ethics of Service.” Georgetown
Law Journal
Baines, Cynthia DeBula. 1996. “L'Affaire des Foulards - Discrimination, or the
Price of a Secular Public Education System.” Vanderbilt Journal of Transnational
Law
Metcalf. 1996. “Introduction: Sacred Words, Sanctioned Practice, New
Communities.” Making Muslim Space in North America and Europe
Eser. 1997. “The Importance of Comparative Legal Research for the
Development of Criminal Sciences.” International Encyclopaedia of Laws

7
Electronic and Web Sources:
Farooq. 2013. “Ethnocentrism Meaning, Definition, Examples & Effect on
Society”, Study Lecture Notes. Available at:
http://www.studylecturenotes.com/basics-of-sociology/ethnocentrism-meaning-
definition-examples-effect-on-society

The multicultural paradigm views all states of the world as multicultural-as consisting of
more than one national group, more than one religious group, or many ethnic groups.On this
view, even though all citizens of the state share a certain cultural layer-the national culture of
the state-in many instances, they identify with, and are primarily loyal to, a culture other than
that culture-namely, their minority national culture or their religious culture. This view of the
state invites a pluralist conception of law that accommodates the differential application of
state law, as opposed to the legal-monism/rule-of-law understanding that prevailed during the
nation-state era.

8
9