While comparing is a basic mental activity that we do whenever we think analogically (E Melandri, La Linea e il Circolo (fourth edition, 2017) 10, 166), comparative law as a discipline is a fairly recent product. It first emerged during the establishment of modern sovereignty (J Husa, Advanced Introduction to Law and Globalisation (2018), 38), and it was only at the 1900 Paris Congress – the “mythical” (G Frankenberg, Comparative Law as Critique (2016), 5), foundational moment of modern comparative law – that comparatists granted their own subject full recognition and legitimation. This was done by equating comparative law with a call for scientism – i.e. a “continuing belief in the science of law as both a method for unbiased analysis and the discovery of the classifiable nature of all legal systems” (L Rosen, “Beyond Compare”, in P Legrand and R Munday (eds) Comparative Legal Studies: Traditions and Transitions (2003), 493, 493).
Yet, after more than a century, the status of comparative law is anything but clear (M Siems, Comparative Law, 2nd edn (2018) 6–7). Many, if not most, commentators think that, simply put, there is no such thing as “comparative law”, at least to the extent that we speak of, say, “contract” or “tort law”. Others, especially comparatists, hold that comparative law is a valuable academic and professional practice with its own rules, methods, and aims. The debate testifies to comparative law's “never-ending methodological self-doubts” (P Zumbansen, “Transnational Comparisons: Theory and Practice of Comparative Law as a Critique of Global Governance” in M Adams and J Bomhoff (eds), Practice and Theory in Comparative Law (2012) 186, 188) and consequential inability to reach the much-awaited “maturity” (E Örücü, “Developing Comparative Law” in E Örücü and D Nelken (eds), Comparative Law: A Handbook (2007) 43, 44).
Making a significant contribution to the literature on the subject, Catherine Valcke's Comparing Law. Comparative Law as Reconstruction of Collective Commitments argues that comparative law is a cognitivist act of meaning-reconstruction whose object is law. The core of Valcke's argument is that law is an “argumentative social practice that both reflects and constitutes a community's commitment to governing itself in accordance with certain ideals” (18; emphasis omitted). Hence, Valcke's notion of law blends together material and ideal elements (10). Specifically, according to Valcke, there are “six essential features” (ibid)...
