‘Difference’ and ‘Similarity’ in Comparative Law: Lessons from Process-Relational Philosophy

Abstract

Functionalism has been increasingly challenged by legal comparatists questioning its nature and suitability. These epistemologically-focused critiques have effectively dichotomised modern comparative law methods, leaving two undertheorised possibilities, namely, the functionalist model-understood in conventional positivist (and substance-ontic) lexes-and emergent postmodern approaches as typified by Pierre Legrand’s system of ‘negative comparative law’ protocols. This article explores an often-neglected alternative grounded in process-relational philosophy. As shown by re-examining Ernst Rabel’s original model, its central claim is that a synthesis of early functionalist theory and process-relational principles exposes postmodern critiques as imprecise and overstated-arguably misconceiving key notions of ‘difference’ and ‘similarity’, and consequently failing to appreciate how greater awareness of the correct order and relationships between levels of abstraction can enhance the nature and possibilities of comparative legal knowledge.