In general, Patrick Glenn answered this question under the title “Objectives of Comparative Law”.4xIn the Elgar Encyclopedia of Comparative Law (Glenn 2006). Compare the “objectives of comparative law research” listed by Esin Örücü (2007, pp. 53-56). He mentions (a) comparative law as an instrument of learning and knowledge5xCompare: “Like other sciences, comparative law is the acquisition of knowledge. Like other branches of case law, it refers to legal knowledge” (Sacco 1991). Sacco also refers to Zweigert and Kötz, who use similar wording in their introduction to comparative law (he refers to pages 16-17 of the second edition of the 1984 German version). (information on and better understanding of the law elsewhere), (b) comparative law as an instrument of evolutionary and taxonomic science (common developments, diachronic changes, legal families), (c) contribution to one`s own legal system (to better understand it, including the resistance of its traditions, to improve it, to use it as a means of interpreting the Constitution) and (d) the harmonization of law. Glenn, however, strongly criticizes much of the ideology that underpins traditional comparative law and still does so today. There is the constructivist belief that the use of foreign law is used for one`s own national legal system, which is otherwise well protected, or that the harmonization of law is only a technical issue, or in the taxonomies of coherent “legal families.” There is also much Western imperialism in what William Twining called the “country and Western approach” to comparative law (Twining 2007, pp. 69-89).
Nevertheless, the above goals are also largely valid in more open, pluralistic, and less constructivist comparative research, Glenn concludes. 4 In the Elgar Encyclopedia of Comparative Law (Glenn 2006). Compare the “objectives of comparative law research” listed by Esin Örücü (2007, pp. 53-56). 12 Jaakko Husa (2013) shows that “functionalism” in comparative law has little to do with “functionalism” in other disciplines. In short, “the functional method” is a triple abuse of language. First of all, there is not one (“the”) functional method, but several. Second, not all so-called functional methods are “functional” at all.
Third, some projects that claim to adhere to it do not even follow a recognizable “method” (Michaels 2006, p. 342).12xJaakko Husa (2013) shows how “functionalism” in comparative law has little to do with “functionalism” in other disciplines. Since this blog post is limited to the word frontier, we cannot discuss everything that has to do with comparative research methods in case law. However, before using a comparative law research method, you need to understand what it entails, why you use it, justify the selection and sampling of cases. Finally, be clear about how you will perform the benchmarking. `Therefore, tertia comparationis cannot be defined as part of the method; The comparison must remain open to new perspectives. Nevertheless, as a result of successful comparisons, the discipline has developed, perhaps unconsciously, a second-rate comparative language that describes the concepts that make up the beliefs of different religions. It has become very useful for analyzing the similarities and complex differences of religion; Overall, it represents a large stock of comparative knowledge” (Jansen 2006, p. 330). Before choosing a research method and design, the first thing you do as a researcher is to formulate a clear research question based on your research topic, purpose, interests, and theoretical framework. The assumption is that you have chosen a research topic that is not only of interest to you, but is also relevant and contributes to the ongoing conversation.
The next step proposed by vogt is to select a model and research method that will provide an answer to the research question. This implies that you must have a great understanding of research methods and conceptions, as Cane and Kritzer noted in his extensive book on empirical legal research. Choosing a research method or design is not easy and is not exclusive. A researcher can use mixed methods, if necessary, to provide an answer to the research question and prove their reasoning logically. What is comparative law research? In fact, the law in action may be (entirely) different from the law in books. Most lawyers are well aware of this conclusion. For this reason, a regulation at the level of the rules must be supplemented or, in some cases, started with a comparison of court decisions. In some cases, such as in very recent legislation or the unavailability of other sources in a language to which access is available, the comparison will be limited to the level of legislation. However, any substantive research in the field of comparative law must examine both legislation and jurisprudence, as they are both crucial to the knowledge of law in all legal systems, common law and civil law.31xWhen Roscoe Pound published his famous article “Law in Books and Law in Action” (1910) a century ago, He commented mainly: Sometimes by approving, sometimes disapproving, the way judges, prosecutors and police deliberately failed to follow the written law.
He considered that it was incumbent upon lawyers to “bring the law into the books in such a way that the law in action could adapt to it” (p. 86). This can show how divergent doctrinal rules and constructs can lead to similar decisions, or how similar doctrinal rules and/or constructs can lead to divergent practical solutions. The main reason for this is that, especially in difficult cases, judges first see a desirable solution for the present case, which they then try to build on the basis of the legal instruments available in their legal system. However, the specific doctrinal constructs of a legal system and/or the underlying paradigmatic views may block some outcomes and facilitate others, as can be seen, for example, in the example of contract interpretation in section 5.4. All jurists will agree that comparative research cannot be limited to the simple comparison in black letters of legal norms, concepts or systems. Even national legal doctrine will at least take into account the functioning of the law in practice, insofar as it results from judicial decisions. On the other hand, the law in context as a method cannot be isolated from other methods. They are complementary and interdependent for an adequate understanding of the law.
While some forms of analytical method could be carried out at a more abstract conceptual level, rather detached from the underlying social reality, this is not the case for other possibilities of comparison. By definition, the functional method already refers to a context: which social problem is solved with what type of legal construction? If a company wants its citizens to act responsibly and prudently to avoid harming others, it can apply tort law, contract law, legal obligations, “subjective” or “objective” liability, accept or not “pure economic loss”, etc. In different legal systems and situations, legislators (or judges) may have chosen different means to achieve such an objective. In order to guarantee the payment of damages, they may have introduced compulsory insurance or other means that should lead to balanced redistributive justice as conceived in the worldview (of the majority in) this society. The functional method therefore includes, at least to some extent, a method of law in context.18xÖrücü even sees the “sociological approach” as a variation of what he calls the “functional-institutional approach” (Örücü 2007, p. 52). From several examples above, it can be seen that the structural method and most of the analytical method cannot be achieved without a minimal approach to the law in the context, even if, in practice, they are often hidden rather than made explicit. The origin of comparative law is controversial in many ways, as it existed in many legal systems long before it was called comparative law. For example, in Russian legal history, the method dates back to the sixteenth century. Thus, the method existed for a long time, but the first mention of comparative law dates back to the seventeenth century, when an English author Bacon mentioned the term.
Thus, the first adoption of modern comparative law seems to have been carried out by Rome and England. In 1829, the term was used by Mittermaier and Zochariae in their first legal journal, which was devoted to the study of foreign law and thus paved the way for Germany`s legal system. At the founding event of the Collège de France in 1832, the concept was also introduced in France. In the late nineteenth and early twentieth centuries, Raymond Saleilles and others in France saw comparative law primarily as an instrument for improving domestic law and legal doctrine, as a means of renewing the petrified approach of the still dominant exegetical school of the Civil Code and its interpretation (Saleilles 1911, p. 1). 22).3xSee also the debate in the United States on the citation or non-citation of foreign jurisprudence, which in turn is part of the discussion between “originalists” (according to the historical meaning of legal texts) and “evolutionists” (who want to adapt the text to changing circumstances) (Reed 2008, pp. 253-273). At the end of the twentieth century, many European jurists saw comparative law as a necessary instrument for a (desirable) harmonisation of law within the EU. Therefore, depending on the circumstances, there may be different objectives and different reasons for comparing legal systems.