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James Gordley
A common method in comparative law is functionalism. Legal doctrines and rules are compared in terms of the functions they serve. This method is sometimes in tension with another which explains differences in law by differences in culture. That tension can be reconciled by recognizing that these methods are complementary variants of a teleological approach to law and culture, one that is concerned with the goals, purposes, and ends that the members of a society are trying to achieve. This Article responds to Pierre Legrand’s claim that the functionalist method is “positivist,” and so blinds one to differences among cultures. He, and like-minded thinkers such as Jacques Derrida, regards each society or culture as a “singularity.” If it were utterly singular, however, it would be unintelligible. To understand the differences, as well as the similarities, one must be able to identify some features of a society and discuss them in abstraction from others. The features that chiefly define what we mean by differences in culture, and enable us to understand and appreciate them, are the purposes that the members of a society are pursuing and the ways in which they do so.
