ABSTRACT
This study discusses the epistemological dimension of critiques of comparative law. It contends that the critiques rest upon what I call mode of differentiation, that is, an epistemology of comparing ‘the other than’ or ‘the different from’. The argument builds upon re-examination of some contemporary critical approaches to comparative law from a Deleuzian jurisprudence, which is a jurisprudential reflection of law as singularity and constant becoming. Particularly, this study makes the case of four modes of differentiation, ie, distancing, perception, otherness and movement. These modes of differentiation can be seen as comparativist-at-law’s endeavor to differentiate conscious idea at work and to attend to the concept-creation of law and lawful relations in foreign legal systems. Accordingly, the image of comparative law must be based on three main features: (1) it seeks perceptual rather than conceptual understanding of law; (2) it is non-dogmatic in a sense that it breaks free from the transcendence in comparison, thus mapping the becoming of legal assemblages; and (3) it abandons hierarchization to the extent that comparison is directed at the openness to problematize, experiment and create. This epistemological move can largely be supportive of the interpretive account of comparative law, seen to be one of the fundamentals in advocating the critical dimension of comparative law.
Citrawan, Harison, The Non-Dogmatic Image of Comparative Law (May 8, 2024).
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