Econocentrism

The reduction of all qualities to quantities is nonsense.

(Friedrich Nietzsche)¹

For most comparatists-at-law, comparison resolves itself as a generalizing activity directed toward one form or other of normative integration. It thus succumbs to the Hegelian temptation of sublating contradiction, that is, of assimilating the singular. I am critical of this disciplinary stance, and I have long sought to forestall this appropriative tendency – which, to my mind, can only be based on fictional relationality across laws. Because it is unavoidably artificial, obstinately instrumental, and, indeed, determinedly hegemonic, I want to suspend the connection between comparison and measure. In other words, I advocate processes of comparison that are no longer bound to commensuration. I argue in favour of incommensurability as the radical absence of common ground between different orders of legal knowledge. 'Common ground,' any 'common ground,' must assume a metalanguage; but the empirical fact is that there is no language that can dispense with idiomaticity. What there is across laws, and all there is, is an abyss – an untranslatable abyss. For me, comparison is thus the site of a problem rather than a solution.

Place, then, is not a mere static backdrop to legal meaning: it is a dynamic constituent of it. In other words, place is not simply a physicalist conception: it is also an existential notion. Law emerges only in and through place (an assertion that does not entail an essentialist, exclusionary, reactionary, conservative, or immobile understanding of 'place' – one can, indeed, approach 'place' as source rather than terminus, as that from which something begins in its unfolding, rather than that at which it comes to a stop). Law and place are inextricably enmeshed, which means, incidentally, that law can be constitutive of place in its turn. In the same way that there is no ungrounded language, there is no ungrounded law. For law, any law, to be 'as law,' it must stand forth in terms of an experience of place. It must dwell. For those who have German, I make, in short, a claim for 'Ortung' in contradistinction to the seemingly relentless drive for ever more 'Ordnung' being promoted by the large majority of comparatists-at-law, who would have us believe that the world today is so mobile, so interconnected, and so integrated that it is, in one prominent assessment, 'flat.'²

Those who claim to have elicited a common denominator transcending laws and the places of laws, allowing for a mathematization of law, par-taking in some sort of epistemological bilingualism, and permitting a rigorous Archimedean assessment (and ranking) of laws in terms of 'efficiency' are, in effect, positing a range of audacious postulates. They claim that they can ascertain, understand, and formulate 'the law' governing, say, the sale of real estate in France, both accurately and exhaustively (without their enunciation's being coloured by any pre-understanding of French law that they might carry as a result of their own prior socialization into 'their' law); that there exists a 'referential' language called 'economics'; that 'the law' governing the sale of real estate in France is translatable into 'economics'; that 'the law' concerning the sale of real estate in France can be translated into 'economics' by economists in a manner that remains 'true' to it and involves no distortion of it; that economists can reiterate precisely the same sequence (ascertainment, understanding, formulation, translation into a 'referential' language) with respect to, say, the law of real estate in England; that economists can then engage assiduously in wertfrei comparison and reach wertfrei conclusions with respect to the relative 'efficiency' of each law; and that economists can therefore ground their identification of the 'better' law on unassailable (economic) foundations. The general idea underwriting these various heuristic motions is an apprehension of comparatism as dialectical resolution favouring a progression, through immersion in a utility-maximizing framework of calculation, toward a position of knowledge of law-as-price that would enclose local epistemologies – their anachronism, their irrationality – within a fixed system withstanding 'contamination' by culture, offering technically guaranteed meaning, and resting knowledge on secure rational ground not unlike the way in which gold once validated banknotes. While law is indeed...