The Fate of Ethnocentrism and Cultural Relativism in Comparative Law – Causes, Manifestations and Effective Strategies - 10.1628/003372513X665658 - Mohr Siebeck
Rechtswissenschaft

Judith Schacherreiter

The Fate of Ethnocentrism and Cultural Relativism in Comparative Law – Causes, Manifestations and Effective Strategies

Das Verhängnis von Ethnozentrismus und Kulturrelativismus in der Rechtsvergleichung Ursachen, Ausprägungsformen und Strategien

Jahrgang 77 () / Heft 2, S. 272-299 (28)

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This article addresses different forms of ethnocentrism and cultural relativism in comparative law and seeks to generate alternative approaches. At first glance, cultural relativism seems to be the only alternative to ethnocentrism. However, this either-or fallacy results from an epistemological simplification of the relationship between the Self and the Other and may be transcended by the re-conceptualisation of this relationship. In this way, we can generate alternative approaches in comparative law that go beyond both ethnocentrism and cultural relativism. In general, ethnocentrism means that one's own norms and standards are universalised and thereby serve as an allegedly neutral basis to learn about, represent, judge and criticise the Other. On the other hand, cultural relativism traces all norms and standards back to the culture where they have been generated and confines their scope of application to this culture of origin. Hence, different cultures are incommensurable; value judgements and critique of one culture from the perspective of another culture are not allowed. This article discusses different forms of ethnocentrism and cultural relativism with regard to four topics of comparative law: The role of our own standards for value judgements about foreign law; the methodological handling of our prejudices when we try to understand foreign law and its Otherness; the global systematisation of legal systems, in particular the differentiation between European and »other« (non-European) legal families; and the possibility and success of legal transplants between substantially different contexts. The analysis of ethnocentrism and cultural relativism in these areas shows their common epistemological basis: They result from the relation between the Self and the Other being conceptualised as a dichotomy between two homogenous and totally different entities. This dichotomy forces us to either consider foreign law and foreign legal cultures as similar and submit them to the Self, or as totally different and exclude them as the Other. If we re-conceptualise the relationship between the Self and the Other as a dialectic relationship between heterogeneous and hybrid entities, we can generate comparative law approaches that go beyond ethnocentrism and cultural relativism. These approaches utilise the dialectic force between the Self and the Other as a specific comparatistic source knowledge and basis to generate value judgements, make visible hybridisation, influence between different legal systems and the co-existence of similarities and differences and enforce intercultural legal dialogue and understanding.
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Judith Schacherreiter Geboren 1977; Studium der Rechtswissenschaften in Linz und Wien; seit 2003 Universitätsassistentin an der Abteilung für Rechtsvergleichung, Einheitsrecht und Internationales Privatrecht an der Universität Wien; FWF-Erwin-Schrödinger Auslandsstipendium in Mexiko; 2013 Habilitation.