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 functional method has become the mantra of comparative law. Comparative law is by definition the study of foreign law. Jul 29, 2005 the importance of comparative law in legal education. Throughout history and throughout the world, a wide range of body mutilation practices have been carried out by adults on children. Until now, this has been hampered by widespread misunderstanding of the relation ship between statistical and qualitativehistorical methods of comparison and their respective theoretical bases. The first session of the course will be taught by asli bali and jessica peake, and will provide an introduction to doctrinal scholarship and different methods of empirical study.
Methods and functions of comparative law directory of. In order to clarify this point of view, we shall first discuss some of the existing. Pdf the functional method of comparative law researchgate. Pdf the functional method has become the mantra of comparative law. Functions of comparative law and practical methodology of comparing.
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. Potentials and limitations of comparative method in social science reza azarian stockholm university sweden email. Comparative law, examination of comparative legal systems and of the relationships of the law to the social sciences. The method and role of comparative law open scholarship. Methods of comparative law research handbooks in comparative law serieselgar original reference. 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. 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. 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. An introduction to comparative law theory and method european academy of legal theory series samuel, geoffrey, ost, francois, hoecke, mark van on. 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. It is also used to understand our own culture better through the process of comparison to another culture. Functions of comparative law and practical methodology of.
Everyday low prices and free delivery on eligible orders. Primarily, it is a method, a way of looking at legal problems, legal institutions, and entire legal systems. 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. Comparative law, function and methods sciencedirect. For its proponents it is the most, perhaps the only, fruitful method. Jun 29, 2012 methods of comparative law brings to bear new thinking on topics including. As we reassess the methodology of comparative law, we need also to reassess the purposes and missions served by comparative law. Methods of comparative law brings to bear new thinking on topics including. Functions of comparative law and practical methodology of comparing or how the goal determines the road. Methodology of comparative legal research law and method.
According to the second thesis, comparative law acts not so much as a method but rather as an independent scientific and educational discipline. Generally, comparative law has been employed as a discipline to understand foreign law and culture. Comparative law as method and the method of comparative law. An introduction to comparative law theory and 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. The elaboration of methods and functions of comparative law, as a starting point, has the historical origins and development of comparative law. Danny pieters introduction in a course like this the teachers can take two approaches.
Methods of comparative law research handbooks in comparative. Methods and functions of comparative law directory of open. Rodolfo sacco terms these underlying influences legal formants, influences that help drive the. Request pdf methods of comparative law extensively footnoted throughout, the book takes its place as part of elgars research handbooks in comparative. Mostly one will do one little step further and agree that law comparison allows us to better know and understand national law. However, comparative law is not a social science, and herein lies the third promise of an interdisciplinary. Not only we are not dealing with some kind of branch of law, such as e. Methodologies of constitutional comparison vary at least as much as, if not more than, methodologies more generally in comparative law. Most frequently, the basis for comparison is a foreign law juxtaposed against the measure of ones own law.
Methods of comparative law research handbooks in comparative law serieselgar original reference pier giuseppe monateri on. Part ii extending the methods of comparative law 95 5 postmodern comparative law 97 a. Let me thank you heartily for your invitation and for the opportunity to talk to you. United states goals and methods of legal comparisons journal of legal education, vol. Researchers get easily lost when embarking on comparative legal research. 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.
Functionalist comparative law then becomes a betterlaw comparisonthe better of several laws is that which fulfils its function better than the others. Others call comparative law merely a method of study and research or even a technique. Our discussion of theory and method in comparative research dif. 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. 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. Eberle, the method and role of comparative law, 8 wash. Methodology of comparative legal research mvh in recht methode 2015. Methodology of comparative legal research bju tijdschriften. 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. 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.
There is also a vivid and specific debate on the legal origins thesis and on the doing business reports produced by the world bank. 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. The functional method of comparative law duke law scholarship. For each class students will be expected to read 12 assigned papers that engage in a different international or comparative law topic. 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.
Students will be required to submit before each class questions on each of the assigned readings. Buy methods of comparative law research handbooks in comparative law series reprint by pier giuseppe monateri, pier giuseppe monateri isbn. 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. The comparison of the educational systems of several countries lends itself to a variety of methods of treatment, depending somewhat on its purpose. An introduction to comparative law theory and method jacques vanderlinden follow this and additional works at. Comparative law has often been criticized for not following any method when carrying out comparative research. It is comparison of law, not really a field of substantive law. In recent years it has gained in practical importance for two reasons. On the initiative generally, see buhler, kg, the austrian rule of law initiative 20042008. Introduction more than ten years ago, bruce ackerman considered, but dismissed, the. Many such practices involve sexual mutilation, including female genital mutilation in presentday africa, male. The general tenets of comparative law, especially as m. 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. Potentials and limitations of comparative method in social. This essay argues that there is not, and indeed cannot be, a single exclusive method that. Functional method of comparative law oxford handbooks. 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. 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. Methods of comparative law request pdf researchgate. The importance of comparative law in legal education. Comparative law is not a body of rules and principles.
This should reveal its connections with and its peculiarities within both the development of comparative law and the development of functionalism in other disciplines. Comparative law paul norman reference and online services librarian, institute of advanced legal studies what is comparative law. They can try to unify their contents according to one paradigm or take the freedom of giving a. 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 remaining five classes will be led by different members of the international and comparative law faculty.
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