The question of comparison

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 exposing how comparison is present in law. The article shows how law cannot function without comparison and how the legal world skips over the central stake comparison has in these matters. The paper explores the literature on legal comparisons and brings insights from philosophy, comparative law, and anthropology to better understand comparison in practice. This paper 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 comparison. What is function and how is it related to comparison? Inspired by James Tully’s writings, the paper explores the aspectival views of the legal world offered through the different games of comparison. The paper draws from Stephen Mulhall’s work on Wittgenstein’s seeing-as, aspect-dawning, and aspect-blindness to further ask about our relationship to comparison. The paper 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 paper explores the possibility of other kinds of comparison through Stramignoni’s poetic comparisons. This paper is calling on us to slow down our comparisons and begin to question comparison itself.