Elgar original reference
Edited by Jan M. Smits
Chapter 46: Methodology of comparative law*
The everyday process of thinking involves the making of a series of comparisons, that is, a process of contrasting and comparing, juxtaposing the unknown and the known, and our comprehension of the phenomena around us occurs through observing differences and similarities: ‘Just as the qualities of a yellow, its hue, brilliance and tone are perceived and sharpened most truly by placing it first on or beside another yellow and secondly by placing it in contrast to purple, so we explore the world around us’ (Örücü, 1986, p. 57). Notwithstanding, the fact that any one thing can be compared with any other thing has not, however, prevented wide discussion of the concepts ‘comparability’ and ‘methodology’ by comparative lawyers. Such discussion starts with the claim that ‘things to be compared must be comparable’, and revolves around the words ‘like’ and ‘similar’; ‘like must be compared with like’ and ‘similia similibus’ being well-established maxims of comparative law. What is ‘like’ in law? Even if what ‘like’ means can be determined, how much ‘like’ do things have to be to be ‘comparable’? What is meant by ‘only comparables can be meaningfully compared’ and by concepts such as ‘sufficiently comparable’, ‘reasonably comparable’ or ‘fruitfully comparable’?
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