Charting the Skies from a Moving Earth: Relativity and Position in Comparative Law

Abstract

This article brings the insights produced by comparative legal analysis to bear on comparative legal discourse itself, in order instructively to recontextualize enduring methodological debates taken to concern the “philosophy” of comparative law. It grounds several such methodological arguments in fundamental positions of legal theory and philosophy, reflecting in doing so on the broader philosophical consequences of specific positions, and emphasizing the resulting problems of incommensurable positionality. It challenges the unvoiced but widely exhibited assumption within comparative law that sufficient reflection, abstraction and care can avoid the privileged reification of contingent legal concepts and categories. It explores the inevitable positionality of all comparative inquiry particularly in connection with the comparatist’s status as both product and reconstituter of legal facts and ideation. It introduces a focus on relative perspective, urging increased attention to how the axioms of general jurisprudence which ground methodological positions within comparative law express a system of law’s relative position within the legal historical process.