Identity politics and comparative law

Abstract

Identity politics refers to the notion that social and collective identities should be a fundamental focus of politics. Comparative law provides at least two points of connection to identity politics. First, rules in many countries address topics of identity politics, such as gender, race, religion and indigenous cultures. These rules can therefore be compared using the tools of comparative law; yet we still lack work that presents these topics in a cross-cutting and comparative manner. Second, identity politics can be seen as a challenge to comparative law. Notably this is the case for forms of exclusionary identity politics that apply an essentialist position of group identities and may argue against the ability to understand or transplant legal ideas and rules across identity groups. This paper suggests that comparative lawyers should push back against such trends and their negative impact on comparative law.