2 - Comparative Instrumental Studies

Summary

In the second chapter of the book I explore the first moment of the genealogy of modern comparative law. This first moment, instrumental comparative studies, is where modern comparative law emerges. In this stage, comparative law is not interpreted as an autonomous discipline within the law. Rather, comparative studies are an instrument for the advance of other disciplines or of other areas of law. In this section of the book, more precisely, I focus on the analysis of Montesquieu's work. This author is particularly important given that the specialized literature recognizes him as the father of modern comparative law. Montesquieu has been interpreted by this literature as the person who uses the comparative method paradigmatically in this first moment of the discipline; his work has come to represent emblematic forms of the use of this method; some of his conclusions have become part of the canon of modern law and politics. In The Spirit of the Laws, Montesquieu uses empirical information on the law and politics of European and non-European countries to justify his theses on the relationship between natural law and positive law and on the links between positive law and the geographic and psychological characteristics of peoples, as well as to promote a normative political agenda: a legally limited monarchy for his political community. In the process, Montesquieu constructs subjectivities that are central in the creation of modern law: the European and the Asian. In addition, Montesquieu constructs an imagined space that these two types of subjects inhabit: Europe and Asia. Finally, Montesquieu imagines legal and political time in a dual manner: inertially static and dynamic in potency