Comparative Law and Language

Comparative law is law’s cybernetics, or ‘theory of messiness.’ It attempts to steer through the messiness of the foreign by reordering it into the language of the familiar without betraying the original. It is needed urgently in contexts of unrecognized metamorphosis, and today metamorphoses are burgeoning in murky areas outside of law’s traditional categories of either the national or the international. The less apparent, the less visibly foreign, the foreign is, the more comparative law has a task of translation involving the formation of a vocabulary to transmit new configurations that resist detection and articulation. This essay examines the centrality of translation to processes of language and meaning construction, and links translation to comparative law as a model for the study of similarity and difference, the universal and the particular.

The debate in comparative law over the relative importance of similarity and difference among legal systems has its counterpart in linguistics in conflicting views about whether commonalities among languages are fundamental or marginal. These issues situate both language and comparative law between mutually contradictory aspirations of universalism and pluralism which have stalked the evolution of both fields. Despite appearances of the ascendancy of universalism in today’s world, it is not difference and pluralism that are receding, but, rather, that former domains of pluralism and difference recede, while others emerge.

Like language, inevitably imprecise and perpetually in flux, comparative law can not be frozen once and for all, to be captured for future application if only it is developed with sufficient acuity and insight. It shares what Isaiah Berlin attributed to philosophy and distinguished from the scientific: it does not carry within itself the method of its own solution, and therefore must be reinvented in each generation, destroying its own past rigidities and methods of decoding and transmitting, in order to construct a new modality of analysis, a new vocabulary better adapted to changed meaning.

Comparative law shares with language the pitfalls of miscommunication and misunderstanding, as well as the potentials of learning to see, to communicate and to shed light in that elusive, inevitable, shifting and ever-reconfiguring space that, like language, it occupies between the same and the other.