Abstract
Abstract Comparison is a key component of legal reasoning. We move merrily from like to like within the doctrine of precedent. We invoke comparison whenever we distinguish or apply a case. This Article begins by elucidating how comparison is present in law. The Article shows how law cannot function without comparison, and how the legal world skips over the central role comparison plays in these matters. The Article explores the literature on legal comparison and draws on insights from philosophy, comparative law, and anthropology to better understand comparison in practice. This Article argues that while we are entangled in the questions of sameness and difference, of finding the function and tying together, we are still not asking the question of comparison. What is function and how is it related to comparison? Inspired by James Tully’s writings, the Article explores the aspectival views of the legal world suggested by the different games of comparison. The Article draws on Stephen Mulhall’s work on Wittgenstein’s seeing as, aspect dawning, and aspect blindness to further ask about our relationship to comparison. The Article shows how mainstream comparisons are ontic comparisons that think togetherness through the comparatist. The comparatist steers the belonging together and (un)makes the meaning of all things in mainstream comparison. The argument builds on earlier work by Igor Stramignoni, showing how the Western legal tradition is within a kind of Heideggerian calculative thinking. The Article explores the possibility of other kinds of comparison through Stramignoni’s poetic comparisons. This Article calls on us to slow down our comparisons and begin to question comparison itself.
Highlights
The English common law emerged largely from unwritten law and local customs that varied between each county, legislation affirmed mostly what the courts were already doing.[3]
The earliest known reports of cases detailing the words of litigants, their counsel, and judges date from 1244.6 Henry Bracton made notes from two thousand
The English common law has long been a practice largely consisting of custom and reason
Summary
A man will be imprisoned in a room with a door that’s unlocked and opens inwards; as long as it does not occur to him to pull rather than push it.[1]. Commonwealth L.J. 1, 12 (2003); A.W.B. Simpson, The Common Law and Legal Theory, in Oxford Essays in Jurisprudence 77–78 (A.W.B. Simpson ed., 1973); Tubbs, supra note 3, at 18. I should add, this Article does not seek to answer the question of comparison; instead, it seeks to bring to your attention how we are not yet asking the question of comparison, and why we should
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