Comparative Law

Comparing Laws and Comparing Laws

Comparison is present whenever an author socialized into one law devotes research to another. It is made more visible if the research explicitly refers to more than one law. It is even more recognizable if the laws studied are made to enter into negotiation with one another. While no consensus has been reached about principles, methods, modes of problem specification, types of argumentation, forms of narration, standards of evidence, or techniques of verification, the historical and political fact of differentiation of laws provides comparative legal studies with its vital justification. The apprehension of pluralism as an enabling condition of thought and value supplies comparatists with a protocol of deterritorialized action emancipating them from the local law and foregrounding an interpellative ethics on which all structures organizing the relation between self-in-the-law and other-in-thelaw are made to rest.

Comparative analysis is a powerful political act: it not only ascertains “alterity” or otherness but also inscribes it to the extent that what the comparatist writes constitutes the other's legal identity (which, therefore, can be betrayed). This fact calls for the voice of the other-in-the-law to be allowed to be heard. Because the crossing of boundaries also means the violation of boundaries, it is important to accredit the discourse of the other by allowing the other to be as it is. The comparatist must come to terms with validity claims made and accepted elsewhere based on ontological-symbolic premises guiding statements and actions and taken as being either true or correct.

Throughout, in recognition of the semiotically complex cultural material underwriting denotational textualization, the comparatist must address the matter of linguistic practices of individuation and foster a means of acknowledging linguistic alterity. Since the disclosure of the other's conception of “governmentality” and of its underlying symbolic-ontological bases may allow the comparatist to uncover structures that run counter to the other's self-understanding, critical distance remains key. In any event, the comparatist can never gain access to the legal perspective “from within,” even through a strategy of “immersion.”