Asking comparison with Heidegger

Abstract

Comparison is pervasive throughout the legal world. Comparison has a prominent role in the doctrine of precedent helping to create certainty and consistency in the law, by building a path through like-cases-treated-alike. We trust comparison to assist us to weigh-up and decide matters of law and justice. But why should like-cases-be-treated-alike? And what strange stake does comparison have in these matters? The legal world relies heavily on comparison, and yet the law seldom thinks of comparison. This investigation seeks to ask comparison. Asking comparison implies comparison is not yet thought. In the pockets where law recognises comparison, in comparative endeavours, it has been seen as a transparent and useful tool, but not itself worthy of investigation. Asking comparison in law inter-rupts our legal comparisons, bringing comparison to the open to interrogate it carefully. The claim is not that no one has ever thought about comparison, the thesis engages with the different ways writers have thought about comparison. There is a two-fold sense to the ‘not yet’ asking comparison. In the first sense, the not yet in law refers to the way mainstream Western legal thought generally passes over the role comparison has in its day-to-day and like-to-like functioning. The thesis distinguishes between ontic comparison (legal comparison) and the origin of comparison. In another primordial way comparison is not yet asked. Our question is itself a rupture: asking comparison is seeking-out the out-of-which (the source) that send itself to us. Comparison is a bringing-forth. What determines the movement of comparison? Asking comparison always arrives too late, drawn into that which has already drawn away from us. Asking comparison is always belatedly asking the question of origin, which keeps turning itself away from us. Asking comparison is an opening to the Greek world. The thesis unfolds itself with the question

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