The Positioned Purpose: Rethinking Positionality in Comparative Legal Methodology

Abstract The article critically examines how a comparatist’s positionality and purpose shape the design and outcomes of comparative legal research. Amid ongoing debates in comparative law – pitting functionalist against cultural approaches, or sameness-seeking projects against difference-embracing ones – this article shifts the focus toward a more foundational concern: the motivations behind comparison and the discursive contexts in which it occurs. While questions of “how to compare” dominate methodological discourse, this article insists that we must first confront “why we compare” and “to whom we are speaking.” These inquiries are not peripheral but central to the integrity and potential of comparative legal scholarship. The article argues that every comparatist operates from a particular legal and cultural position, and with a specific communicative aim: their positioned purpose. This purpose not only motivates the comparative endeavor but also determines how domestic and foreign legal systems are selected, interpreted, and related to each other. By ignoring their own motivations and situated perspectives, comparatists risk designing methods that are ill-suited to their actual goals and miss out on the critical potential that comparison uniquely offers. In reclaiming a central insight of critical comparative scholarship, the article rejects the illusion of methodological neutrality or objectivity. However, it also challenges some prevailing assumptions within the critical camp, particularly the tendency to conflate the positionality problem solely with ethnocentrism, and to treat a turn to cultural difference as an automatic corrective. Positionality manifests in more nuanced and varied ways, depending on whether one is speaking from or to the Global North or Global South, for example. The same methodological risks (ethnocentrism and status quo bias) play out differently across contexts, making positionality a dynamic rather than monolithic concern. The article is structured in three parts. Part 1 introduces the problem of positionality and explores how its neglect leads to recurring fallacies in comparative research. Part 2 presents the idea of comparative projects as purposeful constructions, shaped by the comparatist’s discursive and institutional location. Part 3 examines how the specific contours of ethnocentrism and status quo bias vary with the comparatist’s positioned purpose, demonstrating why there can be no universal fix or one-size-fits-all critique for methodological flaws in comparative law. Ultimately, the article argues that positionality should be neither denied nor lamented, but embraced as a source of methodological strength. Comparative law, because of its relational nature and critical distance from doctrinal orthodoxy, is especially well suited to turn positionality into a productive resource. Rather than impeding meaningful comparison, a reflexive understanding of one’s position and purpose enables more contextually attuned, critically engaged, and methodologically sound comparative work.