As we reassess the methodology of comparative law, we need also to reassess the purposes and missions served by comparative law. Functionalist comparative law then becomes a betterlaw comparisonthe better of several laws is that which fulfils its function better than the others. Jun 29, 2012 methods of comparative law brings to bear new thinking on topics including. Comparative law has often been criticized for not following any method when carrying out comparative research. Methods of comparative law research handbooks in comparative law serieselgar original reference. Functions of comparative law and practical methodology of comparing or how the goal determines the road. For each class students will be expected to read 12 assigned papers that engage in a different international or comparative law topic. The information given in the previous paragraphs is intended to illustrate what is meant by a sound law and to indicate the kind of considerations that are taken into account in the application of the comparative method. This article tries to reconstruct and evaluate functionalist comparative law by placing it within the larger framework of other disciplines, especially the social sciences. Rodolfo sacco terms these underlying influences legal formants, influences that help drive the. For its proponents it is the most, perhaps the only, fruitful method. Its establishment, however, as a core comparative law methodology is due to the detailed treatment of functionalism by konrad zweigert and hein kotz in one of the most popular comparative law textbooks introduction to comparative law. The general tenets of comparative law, especially as m.
Research methods for law introduces undergraduate and postgraduate students to available methods of research legalistic, empirical, comparative and theoretical drawing on actual research projects as examples. It is comparison of law, not really a field of substantive law. Published as a first chapter in monateri, methods of comparative law, edward elgar, 2012, this paper aims to bring to bear new thinking on topics including. Functions of comparative law and practical methodology of. An introduction to comparative law theory and method jacques vanderlinden follow this and additional works at. Many such practices involve sexual mutilation, including female genital mutilation in presentday africa, male.
On the initiative generally, see buhler, kg, the austrian rule of law initiative 20042008. One can certainly state that comparative law is always carried out in a functional manner. Since its rise at the beginning of the twentieth century, comparative legal. But comparative law seems unusual in as much as it is often reduced to a method and this, by comparatists themselves for whom comparative law would be a strictly methodological endeavour. Part ii extending the methods of comparative law 95 5 postmodern comparative law 97 a. An introduction to comparative law theory and method european academy of legal theory series samuel, geoffrey, ost, francois, hoecke, mark van on. The method and role of comparative law open scholarship. Some regard it both as a comparative method and a comparative science of law, or see. Researchers get easily lost when embarking on comparative legal research. Pdf the functional method has become the mantra of comparative law. Danny pieters introduction in a course like this the teachers can take two approaches. Individual chapters address the periodization of comparative law, the place of russia and ukraine on the legal map of the world, the renaissance of slavonic law, canon law, convergence between angloamerican and romanogermanic legal systems, the integrating role of international law, and various approaches to typologies of modern legal systems. Researchers get easily lost when embarking on comparative legal. Methodologies of constitutional comparison vary at least as much as, if not more than, methodologies more generally in comparative law.
Nowadays, it is more and more acknowledged that the recognition and understanding of foreign law itself already imply a necessarily comparative approach, and thus comparative law competence. This should reveal its connections with and its peculiarities within both the development of comparative law and the development of functionalism in other disciplines. In recent years it has gained in practical importance for two reasons. The remaining five classes will be led by different members of the international and comparative law faculty. Primarily, it is a method, a way of looking at legal problems, legal institutions, and entire legal systems. Methods and functions of comparative law directory of open. Our discussion of theory and method in comparative research dif.
Most frequently, the basis for comparison is a foreign law juxtaposed against the measure of ones own law. Functional method of comparative law oxford handbooks. Comparative law is not a body of rules and principles. Comparative law scholars thought for some time that the mere exposition of foreign law is not yet comparative law but rather mere collection of information. It is also used to understand our own culture better through the process of comparison to another culture. Llb bachelor of legislative law course is the most common undergraduate course of legal law education offered by many law colleges and universities in india. Let me thank you heartily for your invitation and for the opportunity to talk to you.
Buy methods of comparative law research handbooks in comparative law series reprint by pier giuseppe monateri, pier giuseppe monateri isbn. They can try to unify their contents according to one paradigm or take the freedom of giving a. Methods of comparative law brings to bear new thinking on topics including. The expression comparative law is a modern one, first used in the 19th century when it became clear that the comparison of legal institutions deserved a systematic approach, in. Students will be required to submit before each class questions on each of the assigned readings. The comparison of the educational systems of several countries lends itself to a variety of methods of treatment, depending somewhat on its purpose. In the strict sense, it is the theoretical study of legal systems by comparison with each other, and has a tradition going back over a century. Methods of comparative law request pdf researchgate.
Others call comparative law merely a method of study and research or even a technique. In order to clarify this point of view, we shall first discuss some of the existing. Comparative law paul norman reference and online services librarian, institute of advanced legal studies what is comparative law. Mostly one will do one little step further and agree that law comparison allows us to better know and understand national law. Introduction more than ten years ago, bruce ackerman considered, but dismissed, the. This essay argues that there is not, and indeed cannot be, a single exclusive method that. However, comparative law is not a social science, and herein lies the third promise of an interdisciplinary. Methods vary in what they aim to do and in who is engaged in comparisons, particularly if the comparative enterprise is defined broadly to include doctrine produced by courts, features of government, and the processes of constitutionmaking and adoption. Throughout history and throughout the world, a wide range of body mutilation practices have been carried out by adults on children. Methods and functions of comparative law directory of. Extensively footnoted throughout, the book takes its place as part of elgars research handbooks in comparative law series the first of its kind, apparently, to cover such a broad range of. There is also a vivid and specific debate on the legal origins thesis and on the doing business reports produced by the world bank. Methods of comparative law research handbooks in comparative law serieselgar original reference pier giuseppe monateri on.
Generally, comparative law has been employed as a discipline to understand foreign law and culture. Driven by ideas of internationalization and legal harmonization, it is a matter of course today that a laws intended purposes must be dealt with beyond their own legal systems. Some regard it both as a comparative method and a comparative science of law, or see in comparative law more than one of these aspects. Functions of comparative law and practical methodology of comparing. However, the approaches did not stop to methods and functions of comparative law, but are extended and focused on the principle of functionality, also in macrocomparison and microcomparison concept. Request pdf methods of comparative law extensively footnoted throughout, the book takes its place as part of elgars research handbooks in comparative. Comparative law as method and the method of comparative law. Eberle, the method and role of comparative law, 8 wash. Methodology of comparative legal research bju tijdschriften. Methodology of comparative legal research law and method. Comparative law is by definition the study of foreign law. United states goals and methods of legal comparisons journal of legal education, vol. The functional method of comparative law duke law scholarship. Potentials and limitations of comparative method in social.
The functional method has become the mantra of comparative law. Methods of comparative law research handbooks in comparative. Comparative law offers a thorough grounding in the subject for students and scholars of comparative law alike, critically debating both traditional and modern approaches to the subject and using examples from a range of legal systems gives the reader a truly global perspective. The importance of comparative law in legal education. Methodology of comparative legal research mvh in recht methode 2015. According to the second thesis, comparative law acts not so much as a method but rather as an independent scientific and educational discipline.
Comparative law, function and methods sciencedirect. Everyday low prices and free delivery on eligible orders. An introduction to comparative law theory and method. Potentials and limitations of comparative method in social science reza azarian stockholm university sweden email. In a remark made on the occasion of a debate at the 1900 international conference on comparative law in paris, frederick pollock thus defended the view that. Not only we are not dealing with some kind of branch of law, such as e.