24 September 2008

Legrand on Comparative Legal Studies and Authenticity

Pierre Legrand (San Diego, Paris Pantheon-Sorbonne) has posted his overview article 'Comparative Legal Studies and the Matter of Authenticity', dealing with "salient theoretical issues in comparative legal studies" (that's the abstract, I'm afraid) and originally posted in Vol. 1 of the Journal of Comparative Law, on SSRN, as a San Diego Legal Studies Research Paper (No. 08/71). This is the Table of Contents:

I Premises
II Culture, Then
III Selected Aspects of Comparative Orthodoxy (Such as Truth)
IV The Orthodoxy Applied, Recently and Prominently
V Critique (Part One)
VI Critique (Part Two)
VII Working Towards Another ‘Model’

And from the 'Premises':

Engaging in hubristic programmes that engender a hasty and frenetic search for commonalities-which-clearly-must-be-there-since-we-want-them-there, ‘the comparati[st] presumes similarities between different jurisdictions in the very act of searching for them’. Now, the ‘sameness’ across different laws that comparative research postulates is necessarily based on the repression and exclusion of pertinent differences located in the matrix within which any manifestation of posited law is inevitably ensconced.

The condition of the comparatist is primordially being-towards-another-law such that the notion of ‘relation’ must lie at the heart of any comparative endeavour. Now, we know that ‘[relation] secures the difference of things, their singularity’. Only in deferring to the non-identical, to what is the case in advance of any theoretical elaboration, can the claim to justice be redeemed. Coming to the matter of ‘sameness’ as comparatist —and, therefore, as someone who values diversity as a good and who is prepared to affirm it as a good (although not as a good that will always trump other goods)16 — I can only resist the drive towards uniformity by emphasising, explaining, and justifying singularity, that is, by incessantly reiterating the existence of discrepant epistemological reservoirs of ideas which between them allow communities and individuals to recognise the legal-cultural forms inscribed over the long term that resonate with their sense of identity (including spheres of ‘alternative’ law that have deliberately fashioned themselves as legitimate modes of conflict resolution).

Differential thinking is characterised by its thorough immanence to actualised, real, and, therefore, discontinuous experience, such that if difference is denied, it is life and existence themselves that are denied. Differential thinking thus attests to ‘a gnawing sense of unfulfilledness, [an] endemic dissatisfaction with itself’. It is ‘haunted by the suspicion’ that it is never differential enough. Comparative legal studies must be a practice animated by the conviction that any encounter worth the name must assume encountering the other in all of the other’s singularity and recognising this singularity (...).

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