(i) Epistemic Distortions of ‘Truth’ and ‘Objectivity’

A central pillar of Frankenberg and Legrand’s epistemological critique is their postmodern assault on ‘truth’ and ‘objectivity’. Importantly, these concerns—along with functionalism’s alleged ‘complexity reduction role’—implicate key (and internally incoherent) substance-ontological premises underlying the longstanding philosophical problems of individuality, similarity, and persistence over time.Footnote ⁵³ Opposing any predilection for “definition and theories over practice,” Legrand and Frankenberg’s critique—awash in the Aristotelian substance-ontic language implicit to their ‘positivist’ readings of functionalism—nevertheless raises legitimate worries that comparative law knowledge might invalidly stem “from deduction from first principles and the recognition of static (or sufficiently stable), generalizable patterns that abstract away the inconstant aspects of the world we observe.”Footnote ⁵⁴ Concerns with descriptive failings and unwarranted classificatory stability abound for both theorists.

Addressing these very matters, Legrand contends that, insofar as functionalism is guided by conventional meanings of ‘objectivity’ and ‘truth’, it employs a “strategy of epistemic domination [that] undermines the very idea of knowledge.”Footnote ⁵⁵ According to this view, ‘epistemic domination’ purportedly stems from functionalists’ proclivity for unnecessarily dissolving “the world into concepts and categories,” discrediting and discounting “aspects … pertaining to discontinuity or unassignability.”Footnote ⁵⁶ In Frankenberg’s terminology, ‘function’ is reified as a ‘principle of reality’, which “radicalizes de-contextualization by ‘cutting loose’ and ‘stripping’ the [doctrinal] solutions generated by the diverse legal regimes.”Footnote ⁵⁷ Owing to this ‘excessive conceptualisation’, the epistemic error would appear to consist in functionalists “fak[ing] a clarity that the factical intricacy of the world effectively precludes.”Footnote ⁵⁸ Simply put, by reducing legal practice to the “mere formulation of rules” and by engaging in ‘unreflexive acts of observation’, functionalist researchers thereby produce only “a static, reified and unreal view of a foreign legal system”Footnote ⁵⁹ which, Legrand stresses, “can no longer be approached as a bounded, stable, fixed, form of knowledge (if it ever could).”Footnote ⁶⁰

Another key element of their epistemic critique is Legrand and Frankenberg’s ‘cultural theory’ of law, which posits that—whatever their substantive content—an “interpreter’s epistemological assumptions … are themselves historically and culturally conditioned.”Footnote ⁶¹ Legrand consequently warns that owing to this contingency, “[o]bjectivity—in the sense of what is incontrovertible and non-controversial—is a pernicious epistemology.”Footnote ⁶² Besides misapprehending the ‘factical intricacy’ of the world, functionalism’s epistemic hazards are compounded by failing to recognise that “[a]ll legal representations are immersed in a cultural context,” which renders “[o]bjective comparison … impossible.”Footnote ⁶³ Addressing the futility of unfastening ourselves from our own juridical biases and pronouncements—as ostensibly sanctioned by Zweigert and Kötz—Legrand insists that such “‘unfastening’ … is neither possible nor desirable,” and that ‘objective’ claims to conceptual neutrality “can only pertain to the realm of fiction.”Footnote ⁶⁴

This multi-faceted postmodern critique also has major implications for our understanding of ‘truth’ which, similar to its conceptualisation of ‘objectivity’, “necessarily exists as [a] cultural construct.”Footnote ⁶⁵ As Legrand indicates in the following passage, ‘objectivity’ and ‘truth’ ultimately suffer the same indeterminate fate:

Comparative law is hence predominately “about culture, not truth.”Footnote ⁶⁷ Rather than fixate on “model[s] of veridiction”—as functionalists purportedly must do—Legrand proposes instead that the discipline’s overriding ambition “must be to fashion better epistemic equipment in order to conduct more meaningful research into foreign law.”Footnote ⁶⁸

In the end, Legrand concludes that notions of ‘objectivity’ and ‘truth’ foster only harmful cognitive habits that are tantamount to “[h]iding behind the fig-leaf of ‘convenient fictions’”Footnote ⁶⁹ and turning a blind eye to the reality “that all theories and all conceptual frames … are tenaciously encultured.”Footnote ⁷⁰ Without identifying what this ‘better epistemic equipment’ necessarily looks like, prompt removal of such offending notions from a comparatist’s ‘epistemological tool-box’ is nonetheless for Legrand an essential step towards “achieving more honest thinking about comparative law generally.”Footnote ⁷¹

(ii) Functionalism as a ‘Vast Equivalency-Producing Machine’

Besides Frankenberg’s early reproof of functionalism as “a vulgar version” of its sociological equivalent,Footnote ⁷² a second epistemological pillar that has galvanised postmodern critiques over the years has been a shared conviction that the functionalist method necessarily performs a mysterious but inexorable “complexity reduction” role.Footnote ⁷³ In Legrand’s persistently woolly lexicon, besides constituting an epistemic strategy “undermin[ing] the very idea of knowledge,” functionalism’s reductionism flows somehow from its propensity to “surrender to abstraction” which, by allegedly disregarding all difference, does “much violence to what there is.”Footnote ⁷⁴

Despite its vague inferential leaps, Legrand’s argument appears to run as follows. Impelled by “the epistemological impecuniosity of the ‘praesumptio similitudinis’”—together with frantic efforts to “gratify the comparatist’s metaphysical urges [to control]”Footnote ⁷⁵ —vital “discontinuities, diffractions, and dissonances” across legal cultures are necessarily overlooked or erroneously “‘similarized’ on account of their appropriation by the functionalist [method].”Footnote ⁷⁶ Describing this predicament more plainly, Frankenberg observes that functionalist scholars are simply “not likely to either recognize or respect, let alone relish … differences.”Footnote ⁷⁷ The scholarly upshot is the cultivation of false impressions of ‘universality’ or “scientific reductionism across laws,”Footnote ⁷⁸ accompanied by missed opportunities to replace these implicitly false-to-facts formulations with more accurate descriptions and analyses of foreign legal systems. Compared to functionalism’s ‘epistemic impoverishment’, what is ultimately at stake for legal comparison, claims Legrand, is the prospect of achieving ‘more sophisticated interpretations of foreignness’ by realising “a considerably enriched interpretive yield.”Footnote ⁷⁹

Looking to shed additional light on Legrand’s striking but loose portrayal of functionalism as a ‘vast equivalency-producing machine’, Frankenberg arguably comes closest to revealing its ‘inner epistemic workings’, explaining:

But once again we find functionalism portrayed presumptively as fetishising ‘concepts’ with little regard to levels of abstraction or a more sophisticated epistemological analysis. As will be shown in Part 3, it is not particularly insightful to simply assert that functionalists detrimentally ‘focus on concepts’—any act of comparison must eventually leave the realm of sensory experience and engage in abstract thought. The point is, rather, to determine at which specific level(s) of abstraction optimal ‘solutions’ are found, and how epistemic boundaries and changes in orientation influence comparative law analyses and results. Despite their resonance with established substance-ontic premises, neither Frankenberg nor Legrand’s epistemic critiques adequately specify functionalism’s ‘complexity reduction’ role or its part in ‘undermining’ legitimate claims to comparative legal knowledge.

(i) Frankenberg’s ‘Differencing’/‘Distancing’ and ‘Thick’ Comparison

Frankenberg has responded to functionalism’s ‘de-contextualization’ by endorsing the twin methods of ‘distancing’ and ‘differencing’.Footnote ⁸⁵ Prescribed to moderate functionalism’s supposed ‘complexity-reduction’ effects, “[d]istancing can be described as an attempt to break away from firmly held beliefs and settled knowledge and as an attempt to resist the power of prejudice and ignorance.”Footnote ⁸⁶ According to Frankenberg, “[d]istance de-centers our world-view and thus establishes what might be called objectivity.”Footnote ⁸⁷ ‘Differencing’, by contrast, involves comparatists accepting that “they do not view the phenomena they study from ‘nowhere in particular’.”Footnote ⁸⁸ Rather, “comparatists operate and observe within the boundaries of a particular context and interpret what they see within a particular matrix provided by a specific cultural context that constitutes law and is also constituted by law.”Footnote ⁸⁹

Importantly, distancing and differencing are not discretionary for Frankenberg, but “are prerequisites … of cultural translation.”Footnote ⁹⁰ To inoculate against functionalism’s ‘black box’ of imposed uniformities, “distancing/differencing calls on the comparatist to decenter [their] worldview and to consciously establish subjectivity and context in the comparative space, that is, to take into account the observer’s perspective.”Footnote ⁹¹ Distancing and differencing are also intended to “foreclose any easy retreat to the land of virtuous study, where ‘pure’ science and methods reign and legal comparison can be believed to be unproblematic.”Footnote ⁹²

Besides distancing and differencing, Frankenberg endorses the rough-and-ready concept of ‘thick comparison’. While lacking a clear epistemological basis, ‘thick’ comparison nonetheless “is interested in restoring and rehabilitating law’s detail, because it needs to bring law into view instead of making it disappear behind abstract categories and concepts.”Footnote ⁹³ Aiming to “move comparative work beyond its at times unbearable formalism, barrenness, and mechanistic style,”Footnote ⁹⁴ Frankenberg contends—in a pithy statement capturing the essence of postmodern misreadings of functionalism—that “the comparative study of law cannot be a [simple] matter of reducing concrete differences to abstract commonalities.”Footnote ⁹⁵ Relying on this straightforward account of ‘description’ and ‘theory’, Frankenberg seeks “a richer conception of law,” one that “is open to local knowledge and [is] context-sensitive.”Footnote ⁹⁶ As illustrated by his consistently ambiguous references to ‘abstract categories and concepts’—rendered, in fact, without differentiating levels of abstraction or considering how epistemic boundaries and changes in orientation affect legal comparison or might even account for functionalism’s rampant ‘complexity reduction role’—Frankenberg’s notion of ‘thick comparison’ ultimately falls short of conveying a precise account of its supporting structural metaphysics.

(ii) Legrand’s ‘Negative Comparative Law’

Legrand’s programme for epistemological reform can be best understood by comparing it to Frankenberg’s earlier—and decidedly more pragmatic—prescriptions.Footnote ⁹⁷ While Legrand has praised Frankenberg’s plea for ‘thick’ comparison as being suitably ‘context-sensitive’ and committed to ‘restoring and rehabilitating law’s detail’, he has recently distanced himself from Frankenberg’s epistemic views, concluding that his “critical aspirations are … insufficiently far-reaching, his oppositional edge not sharp enough to operate as comparative law’s governing epistemological practice.”Footnote ⁹⁸ Legrand explains:

So how then are the orthodoxy’s ‘stultifying epistemic chains’ to be broken? Among the aspects of his ambitious intellectual agenda, Legrand’s main prescription for functionalism’s “unwarranted epistemological naïvete” is to “deploy[] an alternative paradigm” for studying foreign law, one that enables “(fully-fledged) interpretation” by avoiding the “serious and numerous deficiencies” of the functionalist method.Footnote ¹⁰⁰ Legrand entreats:

Underlining the vital importance of particularising one’s structural metaphysics, Legrand’s ‘commitment to theory’ is best revealed by examining his self-styled “strategy of epistemic governance.”Footnote ¹⁰² As featured in his most recent scholarly publications, Legrand’s developing system of ‘negative comparative law’ purports to “credibilize research into foreign law and legitimize the fashioning of comparative legal studies”Footnote ¹⁰³ by (crucially) specifying the “cognitive constraints within which [the comparatist] must approach the study of other laws.”Footnote ¹⁰⁴ Legrand’s optimism for a successful ‘epistemological overhaul’ of functionalism appears unwavering. Yet despite seeking to upset comparative law’s “dominant epistemological model,”Footnote ¹⁰⁵ the more interpretive components of his scholarship quickly supersede any specific epistemological or structural insights.

Among his foremost intellectual influences (which include Martin Heidegger, Samuel Beckett, and Jacques Derrida), Legrand effectively builds his ‘negative comparative law’ system on key epistemological insights from Theodor Adorno’s critical philosophy of negative dialectics, explaining that “[l]ike Adorno, I operate under the sign of the rigorous consciousness of non-identity: … non-identity across laws and non-identity across comparatists—and, of course, non-identity across laws and comparatists.”Footnote ¹⁰⁶ Legrand thus introduces his alternative comparative law system as an epistemological antidote—a way of ‘saying no’ to orthodox functionalism’s epistemology—that repudiates a wide variety of established legal propositions.Footnote ¹⁰⁷ Considering that his approach is not supported by any explicit structural metaphysics or epistemological modelling as conventionally understood, significant reliance is placed instead on a curious admixture of Derridean and Gadamerian theory.Footnote ¹⁰⁸ Presuming an “impassable gap between self and other”Footnote ¹⁰⁹ —which is analogised closely to the challenges of interpreting a foreign law text—Legrand concludes that “[u]nderstanding of an ‘other’ law simply cannot be had,”Footnote ¹¹⁰ an extension of dyadic interpersonal relations that has, incidentally, not gone unchallenged by behavioural scientists over the years.Footnote ¹¹¹

Looking to further deepen the analogy, Legrand claims that “[o]nly through (fully-fledged) interpretation can the foreign law-text escape the positive strait jacket and find itself being deployed meaningfully.”Footnote ¹¹² Starting from his major premise that “law exists as culture,”Footnote ¹¹³ Legrand insists that “the foreign law-text and the comparative legal mind operate according to different modes of existence, which … remain at an unoverpassable distance from one another.”Footnote ¹¹⁴ Responding to this ‘unbridgeable’ epistemic gap, Legrand endorses the interpretive technique of ‘tracing’ which, by focusing the comparatist’s attention on chronicling differentiation and difference, “effectively consists in archaeological or genealogical work, [which] must produce an indisciplined assemblage of information to supplement” the foreign-law text.Footnote ¹¹⁵ While reluctant to endorse conventional legal ‘methods’,Footnote ¹¹⁶ tracing would appear to be a pivotal factor for fulfilling Legrand’s primary objectives of acquiring better epistemic equipment and a richer interpretive yield for legal comparison.

Still, whatever its initial plausibility or appeal, it must be observed that by engaging in interpretive theory and ‘self-other’ dynamics—rather than precise epistemological modelling—it is difficult to see how Legrand’s ‘negative comparative law’ system fulfils its grander promises of providing specific “transformative analytical equipment”Footnote ¹¹⁷ for optimising understanding of foreign legal cultures, or any “new kind of thinking.”Footnote ¹¹⁸ Also, without an explicitly defined structural metaphysics, his comparative law critique devolves regularly into hyperbole. For instance, by denouncing functionalism’s allegedly ‘reifying’ effects, Legrand is quick to identify a comparatist’s unavoidable use of ‘concepts and categories’ with unwarranted reductionism and authoritarian control, cautioning:

Besides attributing to all functionalist scholars the same vague and uncharitable epistemic motivation, Legrand never specifies the nature and mechanism of this supposed ‘epistemic domination’, nor its ‘damaging’ effects on human knowledge acquisition. For a legal theorist who proclaims that epistemology is ‘first, second, and third’ in pedagogical importance, it must be said that the very structural metaphysics constituting our discipline’s unique ‘cognitive constraints’—which, as Legrand appropriately instructs, effectively determines our prospects for legitimate legal comparison and knowledge—remains rather thinly conceived by this ‘state-of-the-art’ postmodern critique. In its wake, we can be sure only that functionalism so conceived is somehow characterised by a propensity for producing reified and overly reductionist foreign law accounts.

These misapprehensions aside, Legrand and Frankenberg’s critiques of functionalism do demonstrate that one’s structural metaphysics—perhaps more than any other factor—determines our ability as legal comparatists to conduct and explain our work precisely and credibly. If nothing else, according to their postmodern forays, where ‘truth’ and ‘law’ are socially constructed and ‘objectivity’ cannot survive the vagaries of cultural experience, “[w]hat comparative legal studies needs, and does not get from [functionalism], is a foundational frame,”Footnote ¹²⁰ or a clear statement of its structural metaphysics. This effectively leaves legal comparison with a stark dichotomy of undertheorised options, namely, the functionalist method—understood in conventional positivist (and substance-ontic) lexes—and emergent postmodern alternatives as typified by Legrand’s ‘negative comparative law’ system.

However, as considered in Parts 2 and 3, when informed by process-relational thought, Legrand and Frankenberg’s critiques are revealed as imprecise and overstated—particularly in their inability to distinguish the order and relationships between levels of abstraction and to track their implications for key comparative law concepts of ‘difference’ and ‘similarity’. What is more, powerful synergies between process-relational principles and Ernst Rabel’s original functionalist model provide a highly credible but overlooked alternative that arguably constituted functionalism’s ‘native’ epistemology from the outset.

(i) Perpetual Change: Flux vs ‘Things’

The first and most fundamental facet of process-relational philosophy is its acknowledgment of the universality of change at non-verbal levels of abstraction. Although originating in ancient Greece,Footnote ¹²⁷ modern process-relational thought began with what twentieth-century science had to say about the scientific ‘object’. Considering a deceptively ‘straightforward’ item like an elementary school pencil, Polish mathematician and engineer Alfred Korzybski reported:

So ubiquitous is this ‘mad dance’ of electrons that not only can one not step into the same river twice but, as the pre-Socratic Greek philosopher Cratylus observed, “you can’t even step into the same river once.”Footnote ¹²⁹ Since no process is ever complete, and events have infinite characteristics, it is impossible to obtain “a ‘complete’ acquaintance with even so simple an object as a pencil”Footnote ¹³⁰ —a point in line with Legrand’s comparable account of everyday objects that “it is impossible … to see the whole” of their actuality or existence.Footnote ¹³¹

Unlike correspondence theorists (who effectively infuse their ‘scientific’ formulations with unjustified elementalism and staticity) and postmodernists (who conceive of an unreproducible reality), process-relational philosophers identify a complex structure connecting the ‘scientific object’ with its constituting forces. Korzybski relates:

Whitehead similarly explained:

According to process-relational principles, therefore, we never experience ‘things’ but, rather, only fragments of passing events. As unsettling as it might appear for humanity, we experience during our short lifetimes only a seemingly random and minute portion of infinite processes of change: ‘thing-ing’.Footnote ¹³⁴

For the comparatist-at-law, then, our baseline capability to understand the very ‘objects’ of our comparisons is subject to two inviolable epistemological constraints. First, owing to perpetual change, one can never represent definitively what any scientific object ‘is’. Second, due to nature’s boundless interconnectivity, we can never know everything there is to know about ‘it’. While appearing more or less consistent with Legrand’s commitment to ‘negation’ and his Leibnizian view that “two individual things … must always differ,”Footnote ¹³⁵ process-relational philosophy’s governing ‘epistemic constraints’ are more thoroughly specified and do not ultimately require Legrand’s denunciation of the functionalist method, nor his outward denial of its possibilities for comparative law knowledge.

(ii) Abstraction: An Epistemic Obstacle to ‘Objective’ Knowledge

These epistemological constraints are further compounded by the second (and related) precept of process-relational philosophy—its theory of abstraction. Stated simply, ‘abstraction’ means that human beings process information by leaving particulars out. Footnote ¹³⁶ Since our realities are necessarily partial, we obtain incomplete information about the world. Essentially, we acquire knowledge through inefficient biological processes. ^{Footnote 137} Compared to Frankenberg and Legrand’s ‘epistemic constraints’—which are either inexplicit or highly dependent on imperfect analogies to ‘self-other’ dynamics—what distinguishes Korzybski’s theory of abstraction is that, rooted in human physiology and connected only partially to the natural world, its resultant inefficiencies are inevitable, inescapable, and necessary.Footnote ¹³⁸

Consider Korzybski’s ‘Structural Differential of Reality’.Footnote ¹³⁹ As illustrated in Figure 1,Footnote ¹⁴⁰ the Structural Differential is a ‘map of the map-making process’ depicting three levels of ‘reality’ organised circularly from top to bottom: The Event Level (open parabola); the Object Level (circle under parabola); and the Label Levels (rectilinear pieces). Although different, all levels are equally real.

Figure 1. Korzybski’s Structural Differential of Reality

The Event or Process Level is that of the unreachable ‘event’, or the ‘scientific object’, or unseen physico-chemical processes that constitute stimuli registered as ‘objects’ by our nervous systems.Footnote ¹⁴¹ Due to the circularity of human knowledge,Footnote ¹⁴² the Event Level is both the ‘lowest’ and ‘highest’ level of abstraction. Revealed as an unending realm of infinite difference, it includes our best knowledge about the natural world—one of endless change, interconnectedness, and multi-dimensional order and relations, formulations in line with other ‘strong’ processual accounts describing material objects as “stability waves in a sea of process,” and the natural world itself as “a manifold of concatenated processes” or “one vast, all-encompassing megaprocess.”Footnote ¹⁴³ Importantly, these sub-atomic events redefine ‘substance’ as relational, with sweeping implications for knowledge acquisition. All is relational. Everything is the result of all of its causes. As Whitehead observed, “[t]he demarcation of events, the splitting of nature up into parts is effected by the objects which we recognise as their ingredients. The discrimination of nature is the recognition of objects amid passing events.”Footnote ¹⁴⁴ In step with the Kantian notion of Ding an sich (“thing in itself”),Footnote ¹⁴⁵ while we can recognise ‘objects’—and through experimental activity and ‘extra-neural’ means (e.g., electron microscopy) access processes—it is essential to understand that we have no direct access to the Event Level.Footnote ¹⁴⁶

The second level of reality is the Object Level, which parallels our realm of ‘appearances’ and sensory experience, where we see, hear, smell, taste, and touch.Footnote ¹⁴⁷ Korzybski labels these non-verbal experiences ‘lower-order abstractions’, which involve “a nervous abstraction of a low order” involving—as does any change between the three levels of reality—radical transformations in quality.Footnote ¹⁴⁸ Specifically, a transduction of energy occurs at the organism-environment interface whereby our ‘senses’ are only a result that mirrors interaction between ‘it’ and our nervous system.Footnote ¹⁴⁹ Our non-verbal ‘perceptions’, therefore, are not to be mistaken for simple ‘direct copies’ of Event-Level phenomena.

Our sense of vision provides an instructive example. Unable to simply ‘record reality’, our eye absorbs a limited amount of energies of ‘reality’ and translates that sample, following which our brain interprets this preliminary transformation. As explained by neuropsychologist Richard Gregory, “[t]he retina is not merely a layer of light-sensitive cells, it is also a ‘satellite computer’ in which visual information is pre-processed for the brain.”Footnote ¹⁵⁰ Furthermore, what we ultimately ‘see’ is based on interpretations of light patterns that were perceived a moment ago. In the end, whatever we sense of ‘reality’ in terms of textures, colours, sounds, images, temperatures, etc., is only our nervous systems’ interpretation of a very limited sample of ‘energies’ soon past.

The Object Level is also a silent realm without meaning. Korzybski defined an ‘object’ as “a ‘first abstraction’ (with a finite number of characteristics) from the infinite numbers of [multi-ordinal] characteristics an event has.”Footnote ¹⁵¹ That is, “[w]hat we see is structurally only a specific statistical mass-effect of happenings on a much finer grained level. We see what we see because we miss all the finer details.”Footnote ¹⁵² As Legrand himself seems to have understood by insisting that legal comparativists reach for ever ‘higher interpretive yields’,Footnote ¹⁵³ this opening stage of abstraction has significant implications for human knowledge acquisition. Namely, optimising the ‘truth’ of our verbal formulations requires exploring objects “from all possible points of view and put[ting] [them] in contact with as many nerve centres as we can,”Footnote ¹⁵⁴ a point of notable significance for assessing functionalism’s epistemic nature. These “different, partial, abstracted, specific pictures” must then be “summarized” to become the basis for descriptions and theorising.Footnote ¹⁵⁵ Legrand’s reverence for the ‘differend’—along with his admiration of Samuel Beckett’s commitment to “never put his work ahead of his experience”Footnote ¹⁵⁶ —resonate as well with these process-relational directives to ground our descriptions, theories, and, as we shall see—comparisons—on as rich an ‘experiential yield’ as possible.

The third and final levels are the Label Levels, wherein we attach ‘labels’ to objects and ascribe to them certain characteristics. These ‘higher-order’ abstractions are more commonly known as ‘description’ and ‘theorising’. Involving ever-increasing losses of information, “[t]he label, the importance of which lies in its meanings to us, represents a still higher abstraction from the event.”Footnote ¹⁵⁷ More precisely, “the object is not the event but an abstraction from it, and … the label is not the object nor the event, but a still further abstraction.”Footnote ¹⁵⁸ Like abstracting from the Event Level to sensory experience, labels also leave out particulars, especially when abstracting at higher orders. This theoretically limitless process concludes only when the highest Label Level reflects our most advanced scientific knowledge, or “‘as if’ formulations” (i.e., ‘best-guess’ maps).Footnote ¹⁵⁹ Feeding back circularly into the Event Level (see Figure 1), “science” therefore becomes an “extra-neural” extension of our nervous system.Footnote ¹⁶⁰

At last, notwithstanding similarities to Legrand’s own ‘negative metaphysical’ approach, Korzybski’s Structural Differential distinctly charges legal comparatists with the unavoidable and vitally important task of constructing ‘similarity’ by identifying and formulating multi-ordinal relationsFootnote ¹⁶¹ —which, as confirmed in Part 3, represents a radical point of departure from Legrand’s less-rigorously-developed epistemological framework.

(iii) Multi-Ordinal Relations: Similarity-of-Structure vs Correspondence

A third distinctive feature of ‘stronger’ (i.e., Korzybskian/Whiteheadian) versions of process-relational philosophy concerns the nature of the link between our verbal formulations and the natural world. Modern science reveals that no human language is at all similar to the structure of the energies outside ourselves.Footnote ¹⁶² Even when our powers of perception are enhanced through ‘extra-neural’ means, we encounter distinct quantitative and qualitative epistemic limitations. As Korzybski put it, “structurally we are immersed in a world full of energy manifestations, out of which we abstract directly only a very small portion, these abstractions being already coloured by the specific functioning and structure of the nervous system.”Footnote ¹⁶³

These structural limitations also involve our ‘higher-order’ abstractions, a crucial point for establishing comparative law’s ‘better epistemic equipment’. Since the human nervous system (even when aided by scientific instruments) is our inescapable, limited frame of reference for experiencing the world, we have no option but to use our transacting nervous systems to construct knowledge claims at progressively higher levels of abstraction, extending from ‘lower-order’ description to our ‘highest-level’ inferences or ‘best-guess’ maps of how the universe functions. Conspicuously, each level of abstraction represents a different level of knowing that is neither ‘objective’ nor ‘complete’. No description can cover all the facts. And no map can represent all the details of the territory. In this respect, both Frankenberg and Legrand’s rejection of ‘objectivity’ and ‘truth’ would appear to be grounded on sound process-relational insights.

Still, any ostensive overlap with postmodern critiques does not necessitate outright denial of the functionalist method. While we cannot say everything there is to know about anything, let alone state definitively what anything ‘is’,Footnote ¹⁶⁴ our distinctly human capacity to abstract in increasingly higher orders allows us a ‘way out’ of this apparent epistemic bind by producing symbolic formulations similar-in-structure to ‘what is going on’. As Korzybski explained, similarity-of-structure is the goal of all higher-order abstracting under his model of process-relational thought, including (and especially) the scientific method itself:

As distinct from correspondence theorists, who improperly identify their verbal formulations with what they purport to represent—falsely attributing to them a timeless, changeless reality—process-relational theorists maintain that “the whole content of knowledge is exclusively structural,”Footnote ¹⁶⁶ precisely owing to the powerful, biologically-based epistemic limitations rooted in our capacities for abstraction. For a functionalist legal scholar as much as anyone else, the chief process-relational implication for human knowledge acquisition is clear: “If we want to be rational and to understand anything at all, we must look for structure, relations, and, ultimately, multi-dimensional order.”Footnote ¹⁶⁷

With these three defining principles in hand, we are now better-positioned to understand early functionalist theory by reconstructing its ‘inner epistemic workings’ and evaluating their implications for legal comparison. Rather than ‘unlearn’ functionalism—as Legrand urges comparatists to do to advance our grasp of foreign law—achieving this nonetheless worthwhile aim requires, perhaps, only that it be ‘re-learned’.Footnote ¹⁶⁸

(i) Organism-as-a-Whole-in-an-Environment: The Multi-Ordinality of Legal Phenomena

Another pillar of process-relational philosophy germane to the modern-day comparatist is its repudiation of ‘elementalism’, or the mistaken tendency to split apart at Label Levels what cannot be split at the Event or Object Levels. Instead, knowledge claims are treated from an organism-as-a-whole-in-an-environment perspective, accepting the permanent connection and interdependence of ‘natural’ and ‘social’ facts, which more aptly “parallels the Einstein-Minkowski space-time integration in physics.”Footnote ¹⁷⁰ In short, we don’t do anything out of context.

Even to the casual observer, it might appear sensible that the environment plays a critical role in process-relational thought. After all, “the term ‘abstracting’ implies ‘abstracting from something’ and so involves the environment [by] implication.”Footnote ¹⁷¹ But the importance of ‘environment’ for process-relational philosophy runs much deeper. As with our enigmatic elementary school pencil, another difficulty with obtaining information is that, on top of perpetual flux, scientific objects are “inextricably connected with everything else,”Footnote ¹⁷² such that their context cannot be discounted. There is no simple ‘individual’. The ‘thing’ is its environment. Contrary to conventional thinking, “it’s not simply the same thing being more or less affected by a different environment.”Footnote ¹⁷³ Political theorist Gad Horowitz helped to clarify this elusive notion using the instructive example of a ‘malfunctioning’ car radio, explaining:

Illustrating this point at sub-atomic levels of abstraction, Whitehead instructed almost a century earlier:

Process-relational theorists thus find it uncontroversial that “an electron within a living body is different from an electron outside it.”Footnote ¹⁷⁶ The primary consequence for our already beleaguered legal comparatist is that context must be brought directly and comprehensively into our definitions of ‘individual’ scientific objects.Footnote ¹⁷⁷ Since we cannot use the ‘is’ of identity without confusing orders of abstraction, we must represent this environmental complexity by returning to process-relational philosophy’s central insight into human knowledge acquisition. Specifically, we must formulate multi-ordinal relationships and structural characteristics—an approach at least broadly consistent with Rabel’s original functionalist model.

(ii) Ernst Rabel’s Radical Contextualisation of Domestic and Foreign Law

Rabel’s contributions to functionalism are often underestimated by being categorised as more “deliberately pragmatic … than theoretical.”Footnote ¹⁷⁸ Despite his principal comparative law ideas becoming synonymous with functionalist theory, Jaakko Husa maintains that “Rabel never formulated any comprehensive and systematic methodology,”Footnote ¹⁷⁹ an increasingly questionable assertion in view of the far-reaching epistemological scope and implications of process-relational thought.

A dedicated internationalist who envisioned a common core to all legal systems, Rabel’s ‘rough functionalism’ anticipated that even private law rules “have special functions and purposes requiring a method of international scope.”Footnote ¹⁸⁰ As Örücü has observed, Rabel’s deceptively simple research question was: “How is a special social or legal problem encountered both in society A and society B resolved by their respective (legal or other) systems?”Footnote ¹⁸¹ Offering an apparently simpler alternative to Zweigert and Kötz’s prevailing functionalist model, Husa contends that Rabel provided “a flexible methodological rule that is easy to operate and remember,” viz: [Rabel said] “Instead of concentrating on studying particular material and isolated provisions, emphasis should be on the comparison of those specific solutions that each state makes in ‘situations’ that are practically identical.”Footnote ¹⁸²

Contrary to modern-day ‘postmodern’ interpretations, it would be incorrect to presume that Rabel’s focus on ‘specific solutions’ unfairly ‘represses’ or over-simplifies the legal approaches endorsed in different jurisdictions. As the following excerpt reveals, process-relational conceptions of flux, interconnectedness, and multi-ordinal structure appear to have been implicit to Rabel’s very idea of legal knowledge:

The resemblances to process-relational philosophy are nothing short of striking. Imbued with integrative analysis and multi-ordinality characteristic of the sweeping scientific advances of his time, Rabel’s language reflects process-relational thought more than Zweigert and Kötz (let alone Frankenberg and Legrand) might have realised. For instance, it is not the only sensible reading of the above quotation that “the comparatist must make every effort to learn and remember as much as he can about foreign civilizations,” as Zweigert and Kötz instructed.Footnote ¹⁸⁴ Rabel appears to be doing both much more … and much less. Consider the following passage:

Rather than being understood as endorsing ‘unfocused observation’—which philosopher of science Carl Hempel rightly dismissed as an invalid principle of scientific enquiryFootnote ¹⁸⁶ —Rabel’s self-described ‘comprehensive research approach’ would appear to be situating ‘law’ in its broadest possible contexts. Consistent with Twining’s plea for constructing “total pictures,” this radical contextualisation necessarily includes all of law’s functions. Since “everything is function!” and a ‘thing’ exists only “as the confluence of all its relevant environing happenings,”Footnote ¹⁸⁷ the functionalist method arguably cannot be faithfully (let alone charitably) interpreted independent of process-relational principles. Whether intentionally or not, Rabel can accordingly be construed as revealing functionalism’s ‘native’ structural metaphysics and scientific ideals.

For whatever else one thinks of its being “insensitive to details” and its “technocratic” style,Footnote ¹⁸⁸ Rabel’s innovative method conformed commendably to evolving standards of scientific integrity. As Korzybski acknowledged at the peak of the twentieth-century revolution in theoretical physics, “[t]he new … standards of science really should be, ‘state your undefined terms’. In other words, ‘lay on the table your metaphysics, your assumed structure, and then only proceed to define your terms in terms of these undefined terms’.”Footnote ¹⁸⁹ As for ‘undefined terms’, they are unavoidable, in that “all human statements … involve a structural metaphysics.”Footnote ¹⁹⁰ Rather than obscure their origins and nature, Rabel therefore can be read as endorsing a process-relational structural metaphysics, “[i]n this way … not blind[ing] the reader or student.”Footnote ¹⁹¹

A further benefit of attributing process-relational premises to Rabel’s original functionalist model is that it obligingly situates his scholarly contributions within their wider academic field, where “[w]e invite criticism, elaboration, verification, evaluation., and so accelerate progress and make it easier for others to work out issues.”Footnote ¹⁹² From this perspective, Rabel can be understood as formulating—as perhaps never before—law’s structurally ‘indisciplined’ complexities,Footnote ¹⁹³ an epistemic shift with important repercussions for functionalist theory and methods. Countering Frankenberg’s accusation that functionalism fails to consider the “social, political, economic and cultural context of law,”Footnote ¹⁹⁴ by radically contextualising domestic and foreign laws, Rabel’s early model evidenced remarkable epistemological sophistication, particularly when read in light of process-relational emphases on adhering to the ‘natural’ order of abstraction oriented to empirical phenomena. Interpreted in this manner, functionalism undergoes an unexpected forensic turn—particularly in light of Legrand and Frankenberg’s exclusively ‘positivist’ interpretations. Superseding perhaps even the scope and complexity of their own ‘law as culture’ approaches, Rabel resolved: “From these sources we have to grasp life, the functions of the legal structures. Because the law is … a cultural phenomenon, it cannot be thought of independently of its causes and effects.”Footnote ¹⁹⁵

In sum, despite outward similarities to Legrand’s own ‘negative metaphysical’ approach, our review of process-relational thought demonstrates that, rather than having failed to formulate a comprehensive and systematic methodology, Rabel’s original model can be perhaps better understood as providing functionalism’s earliest structural metaphysics, offering a more contextualised and nuanced representation of law and legal knowledge than either his supporters or critics have so far acknowledged.

(i) Lower-Order Abstractions: Perception as ‘News of Difference’

The first epistemic lesson from a process-relational standpoint is that there is no need for a functionalist to deny that ‘difference is necessarily there’ or that it is ‘ineliminably present’. ‘Difference’—much like ‘comparison’—not only cannot be avoided, but has been aptly prized as a scientist’s “stock in trade.”Footnote ²⁰⁰ In fact, Korzybski’s Structural Differential establishes that a proper understanding of ‘difference’ encompasses three discrete dimensions.

The first involves ‘vertical stratification’ between levels of abstraction, which is shown visually by advancing from the Event Level, to the Object Level, to the Label Levels—eventually reaching our highest levels of abstraction containing our ‘as if’ formulations or ‘best guess’ maps.Footnote ²⁰¹ Importantly, each level of abstraction represents a transformation, where component parts of the world are changed into different orders of existence and qualitative experiences. The map is not the territory. The word is not the thing. As the English linguist and cyberneticist Gregory Bateson noted of the outermost ontological limits of this differentiation: “The territory never gets in at all. The territory is Ding an sich and you can’t do anything with it.”Footnote ²⁰² In terms of the epistemological raw materials constituting our ‘Legrandian yields’ (so to speak), process-relational science confirms that we are left in the end with only our unique amalgams of non-verbal lower-order abstractions, and higher-order abstractions or ‘maps’.

The second dimension of difference involves ‘horizontal stratification’ between similar ‘objects’, which stresses that on the non-verbal level of abstraction we deal only with absolute individuals—be they ‘objects’, situations, etc.Footnote ²⁰³ For instance, we know the Event Level to be a sub-atomic realm of unending flux, interconnectedness, and multi-ordinal relations.Footnote ²⁰⁴ Difference is the order of the day. This realm of difference and individuality is easily verified at the Object Level, where “[c]ommon experience and scientific investigations (more refined experience) show us that the world around us is made up of absolute individuals, each different and unique, although interconnected.”Footnote ²⁰⁵ Recalling that each person abstracts a different and limited amalgamation of energies of ‘reality’, this second dimension of difference reminds us that “one person’s perception, description, inference, conclusion, or belief is not identical to that of any other person.”Footnote ²⁰⁶ In effect, your bite of the apple is never the same as mine (even if we take bites from ‘the same’ apple).

The third dimension of difference introduces the often-discounted factor of ‘change over time’, which involves a vital gloss on horizontal stratification whereby our uniquely abstracted experiences inexorably give rise to different perceptions and evaluations. While not explicitly signified on the two-dimensional Structural Differential, Korzybski emphasised cultivating an enhanced awareness of time-related differences, insisting that “[i]n a world of processes and non-identity it follows that no individual, ‘object’, event, etc., can be the ‘same’ from one moment to the next”Footnote ²⁰⁷ —recall Cratylus’ maxim that we cannot step into the same river once. This ‘time factor’ must henceforth be managed carefully, as our partial experiences of ‘reality’ often require revisions to our descriptions and theories in light of new observations or data. Indeed, while scientifically-oriented, flexible thinkers are aware that their ‘knowledge’ may become obsolete and inaccurate over time—ideally by bearing in mind all three dimensions of ‘difference’—close-minded, rigid thinkers tend to dogmatically cling to outdated and inaccurate formulations, unaware that their ‘facts’ and ‘maps’ are only imperfect abstractions from a fluctuating and densely interconnected ‘reality’.

The epistemic upshot of these insights is that, contrary to Frankenberg and Legrand’s charges of ‘scandalising’ and ‘disregarding’ difference, in a world where all sensory experience is “‘news of a difference,’”Footnote ²⁰⁸ and, where difference is structurally more basic than ‘similarity’, the evidential burden for justifying their epistemic reproaches of functionalism would seem to have become considerably more difficult to discharge.

(ii) Higher-Order Abstractions: ‘Similarity’ as ‘Differences That Make no Difference’

Things get even trickier for functionalism’s critics when we consider the relatively neglected idea of ‘similarity’. The second epistemological insight from a process-relational standpoint is that properly differentiating between levels of abstraction requires accepting the foundational epistemic importance not of ‘sameness’ or ‘similarity’, but of difference. Once we understand that ‘sameness’ does not occur in the natural world, a ‘similarity’ is, in effect, best understood as a difference that does not make a difference.

Compared to Legrand and Frankenberg’s more rudimentary epistemological models, process-relational philosophy helps to expose functionalism’s ‘inner epistemic workings’ by detailing how ‘similarity’ and ‘comparison’ happen—including their necessarily close connections to ‘difference’. As against lower-order abstractions and descriptive (i.e., Label) level abstractions representing absolute differences and interrelatedness, higher-order abstractions “are of a distinctly different character.”Footnote ²⁰⁹ Specifically, compared to the interminable flux and ephemerality of Event and Object Level phenomena, higher-order abstractions such as ‘describing’ and ‘theorising’ are relatively “static, ‘permanent’, and cannot be entirely eliminated from any one [person].”Footnote ²¹⁰ Though impracticable as a matter of fact, it is only ‘in principle’ that different objects or events are ‘similar’ or, much less convincingly, ‘the same’. As with formulating the praesumptio similitudinis and completing functionalism’s most abstract stage of ‘system-building’, ‘similarity’ is accordingly constructed only at higher, inferential levels of abstraction, a point illustrated by the following passage:

Of fundamental importance to our understanding of legal comparison, ‘similarity’ then is a function of abstract thinking, occurring by disregarding difference as one progresses to ever higher levels of abstraction. Consequently, similarity “is nothing metaphysical, nor is it a property that is ‘found in’ or ‘inherent to’ objects themselves.”Footnote ²¹² In a world of perpetual change and interconnectedness, any ‘similarity’ is in fact comprised of “differences that don’t make any difference.”Footnote ²¹³ As an individually ‘manufactured’ article, process-relational thought shows that “[s]imilarities appear only as a result of the action of our nervous system, which does not register absolute differences.”Footnote ²¹⁴ Critical for evaluating accusations of functionalism’s ‘excessive conceptualisation’ and methodological bent for ‘surrendering to abstraction’, any proper epistemic assessment must proceed from a keen awareness that “[s]imilarities are read into nature by our nervous system, and so are structurally less fundamental” than our antecedent, non-verbal experiences of difference.Footnote ²¹⁵ In this respect, process-relational principles appear to add additional epistemic support to even classic functionalist concepts and protocols as established by Zweigert and Kötz.

Moreover, rather than inducing “metaphysical shivers about such extreme individuality,” process-relational theorists openly acknowledge that not only does “our human economy … need both similarities and differences,” but the process of distinguishing between them is essential for exercising human intelligence.Footnote ²¹⁶ Emphasising the close structural connections between abstraction, similarity, and effective evaluation, Korzybski advised:

Challenging any Aristotelian metaphysic of ‘sameness’ implicit in postmodern functionalist critiques, this difference-based conception of ‘similarity’ can accordingly be seen as playing a critical—if not entirely misrepresented—role in comparative law scholarship.

(i) Recognition, Relations, and ‘Structural Knowledge’

A third epistemological insight from process-relational philosophy is that this updated view of ‘similarity’ contributes to all legitimate knowledge claims—whether in comparative law, or elsewhere. Despite their outward focus on the concept of ‘difference’, both Legrand and Frankenberg have not only overlooked its close affinity with Rabel’s original functionalist model, but would appear to have linked untenable epistemological conceptions of ‘similarity’ and ‘difference’ with the comparative process itself—in the case of Legrand, resulting in an unnecessary rejection of the possibility of comparative knowledge that is fully explicable only in light of process-relational thought.

The concept of ‘abstraction’ once more provides our pedagogical base. Besides selectively ‘filtering out’ significant amounts of information received through our senses—which, we will recall, render only incomplete representations of the world—as fully functioning human beings “we also ‘compress’ information, or handle it more efficiently, by making use of similarity.”Footnote ²¹⁹ Strictly speaking, without abstracting in higher orders, we would find ourselves trapped in a lower-order realm of conscious mental life described by the process-relational psychologist William James as “one great blooming, buzzing confusion.”Footnote ²²⁰ That inferential thinking and human knowledge is possible at all is ultimately attributable to our unique ability as human beings to transcend this experiential chaos through the theoretically boundless process of ‘higher-order’ abstracting.Footnote ²²¹

Whitehead has usefully termed this vital compression factor ‘recognition’, distinguishing between ‘sense-recognition’—an experientially-based power of perception, and ‘recognition’ (more broadly)—a more abstract capability “reflected into the intellect as comparison.”Footnote ²²² Emphasising that even “[i]n perception we recognise,” he explained that at its core “[r]ecognition is … merely sense-awareness in its capacity of positing before us factors in nature which do not pass.”Footnote ²²³ Highlighting the close structural links between recognition and abstraction, Whitehead observed:

Of further importance to unlocking functionalism’s ‘inner epistemic workings’, Whitehead discerned that ‘recognition’ occurs much differently at higher levels of abstraction. As “[i]t is impossible to recognise an event,” our recognition of ‘objects’ must provide the epistemological foundation for inferential reasoning. But compared with ‘sense-recognition’—which arises unconsciously—Whitehead postulated that “[o]n the intellectual side of the mind’s experience there are comparisons of things recognised and consequent judgments of sameness or diversity.”Footnote ²²⁵ Consistent with process-relational notions of similarity-of-structure and the fully structural content of knowledge, Whitehead further specified that, along with ‘objects’ themselves, “[w]hat are compared are the … relations of objects situated in events.”Footnote ²²⁶ Confirming their necessity for science and human knowledge, Korzybski professed of these essential knowledge-making relations: “Without some higher abstractions we cannot be human at all. No science could exist with absolute individuals and no relations.”Footnote ²²⁷

At last, in contrast to Legrand’s assurances that ‘without the differend there is no thinking’, from a process-relational perspective—in a world typified by perpetual change and absolute difference—it is more epistemically accurate to underscore the opposite. That is to say, there can be no ‘thinking’ without similarity—another unexpected forensic turn (along with our revitalisation of Rabel’s original functionalist model), prompted by our process-relational ‘rethink’ of its underlying structural metaphysics and defining concepts.

(ii) Implications for Functionalism and its Postmodern Critiques

Besides their indispensability for uncovering functionalism’s true epistemological nature, these process-relational insights present the following epistemic complications for Frankenberg and Legrand’s respective postmodern critiques.

First, both theorists would appear to miss the mark when they criticise functionalism for inexorably ‘surrendering to abstraction’ and cultivating a wholesale ‘disdain for difference’. Contrary to the Aristotelian substance-metaphysics implicit in their ‘positivist’ readings of the functionalist methodFootnote ²²⁸ —in a world of uninterrupted change and interconnectedness—the ‘natural’ order of abstraction for human evaluation (including legal comparison, for it remains unclear why that should be necessarily different) is not based on ‘similarity’ (much less ‘sameness’), but on difference. Even if we take Legrand and Frankenberg at their word, there is only so much a legal comparatist could do to misrepresent such a dynamic environment using ‘functionalist’ methods.Footnote ²²⁹ Moreover, both theorists overlook any affinity between process-relational science and Rabel’s original functionalist model, which effectively overturns our understanding of ‘difference’ and ‘similarity’ and (quite possibly) how functionalism was intended to work from inception.

Process-relational theorists like Whitehead have effectively shown that an integral part of recognising ‘objects’ situated within events is not only accepting their extreme individuality, but their embeddedness in complex relationships and causal networks—that is to say, accepting their ‘functions’, an observation of vital importance to understanding the nature and viability of comparative legal knowledge.Footnote ²³⁰ As our process-relational review of Rabel’s model revealed, any credible understanding of ‘the law’ requires situating legal phenomena in their broader functional context(s). Stressing the interactions between the “social, economic, and legal fields,” recall that Rabel listed as potential legal stimuli almost every conceivable institutional and discursive factor.Footnote ²³¹ Nothing can be understood apart from its context—including legal phenomena, it would seem.

When interpreted in light of process-relational thought, Rabel’s system demands a radical epistemological reorientation from its postmodern construal, reversing its polarities from an intensionally-oriented fixation on ‘concepts and categories’—a structural misunderstanding endorsed by both Frankenberg and Legrand—to an extensionally-oriented, composite study of the law’s ‘functions’, or its embeddedness in its various institutional and discursive contexts. As evidenced by his insistence upon functionalists “comparing the solutions that can be derived from legal life in its entirety” and to putting “the function of legal institutions first,”Footnote ²³² Rabel’s ‘comprehensive research approach’ requires legal comparatists to remain true to the ‘natural’ (i.e., empirically-oriented) order of abstraction characterising process-relational thought more generally.Footnote ²³³ In a world where all perception is ‘news of difference’, and where ‘law’ has been inextricably connected to its ever-changing contexts, we now have good reasons to doubt accusations of functionalist scholars mindlessly ‘reducing’ concrete differences to abstract commonalities.

Second, Frankenberg and Legrand’s epistemic critiques are also undermined by process-relational conceptions of ‘similarity’. Not only have they arguably mistaken functionalism’s understanding and use of ‘difference’, but we now have powerful reasons to question their characterisation of the praesumptio similitudinis and functionalism’s handling of ‘concepts and categories’ more generally. Given that ‘similarity’ is essentially a ‘difference that does not make a difference’—and that recognition and comparison are impossible without the necessary and unremitting process of human abstraction—it is difficult to see how their epistemic charges against ‘functionalism’ can stand.

To take the clearest of examples: Given the importance of perpetual change to process-relational thought, Legrand’s statements that the functionalist is “bound to reach one conclusion only,” expressing a “truth-in-the-law [that] exists irrespective of the comparatist,” must be rejected.Footnote ²³⁴ Using the functionalist model to identify relevant ‘similarities’ between different doctrinal approaches and their institutional and discursive contexts in no way dictates ‘one conclusion’ or ‘one truth’. As process-relational epistemology shows, not only will different researchers likely not achieve ‘the same’ results—either within or across jurisdictional boundaries—they cannot do so. The precise results of functionalist analyses will be affected by each comparatist’s independently abstracted energies of ‘reality’, which inevitably generate different perceptions, descriptions, inferences, conclusions, and beliefs—an understanding in the end fundamentally at odds with Legrand’s view of functionalism as a ‘vast equivalency-producing’ machine. Quite aside from whether the functionalist method might be misused as suggested, there is no reason to presuppose that failures to distinguish between orders (and directions) of abstraction must necessarily happen. To the contrary, we know that for human evaluation to occur at all, we comparatists must engage in ‘higher-order’ abstracting. The real point of concern is determining when and how best to abstract in higher orders, and to what effect(s)—not whether to do so at all. A functionalist—like any other legal comparatist—ultimately has little choice in this matter.

Finally, building on our examination of process-relational thought’s impact on restructuring our understanding of ‘difference’ and ‘similarity’, we can now proffer the following ideas regarding how and when similarities are best introduced in functionalist analysis. Against our revised epistemological background, which identifies structure and multi-ordinal relations as the only content of genuine knowledge claims, it would seem that functionalists ideally construct ‘similarity’ at a suitable level of mid-level discourse—one that is neither too close to ‘extreme individuality’ nor so abstract as to obscure jurisdictionally-relevant institutional and structural relations. One might say that the appropriate threshold would be a level of abstraction at which common institutional and discursive networks reveal themselves to be the most plausible collective ‘function’ or ‘real live problem’ underlying each jurisdiction’s doctrinal differences. As Bruno Latour observed of quality-driven social science scholarship, “a good account [i]s one that traces a network.”Footnote ²³⁵ Working ably within these epistemic constraints requires understanding their subtleties, which—as we have seen—involves mastering process-relational philosophy’s intricate epistemological dynamics.