CompareLex

This post marks the beginning of a sequence that will present the major approaches to comparative analysis. Today, we will discuss the (still?) prevalent comparison method: the functional method.

The Functionalist Basis

A functionalist turns her attention to the function of a rule, i.e. its social purpose. Why? In the eyes of the functionalist, the function of a rule represents the tertium comparationis, the common base on which each comparative endeavour will start.

The Functionalist Premises

The functionalist method rests on the following three premises:

1. legal systems face similar problems;
2. faced with the same problems, legal systems take different measures;
3. despite differing methods, legal systems tend to achieve similar results.

Based on the preceding premises, functionalists will commence the comparative process.

The Functionalist Process

The functionalist process, again, is three-fold:

1. Statement of the problem in purely functional terms (without being influenced by one’s own legal system);
2. One-by-one presentation of the ways in which different legal systems resolve the problem (without criticism nor evaluation);
3. Comparison and evaluation of the preceding analysis (from a purely functional perspective).

Conclusion

The functionalist method has the advantage of providing a clear structure to the comparative process. The pursuit of neutrality and the detachment of one’s own legal system are indeed extremely noble goals. The conceptual basis of the functional method rests, however, on shaky grounds. Thus, laws might serve more than one function, unintended functions, or no functions at all. (This is especially true if they are deeply grounded in history.) In addition, the premise that legal issues are similar in different legal systems is problematic given the variety of cultural setpoints that exist worldwide. This is even more true with regards to the similarity of outcomes (the third premise of the functionalist method). Consequently, especially in highly political cases and/or issues involving moral values (e.g. abortion, same-sex marriage, polygamy), the functionalist method is doomed to fail. As a result, over the years, functionalism has been challenged and other comparative methods have emerged. I will discuss those methods in later posts.

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Sources and Further Reading

[1] KONRAD ZWEIGERT & HEIN KOTZ, AN INTRODUCTION TO COMPARATIVE LAW 33-47 (1998).

[2] Oliver Brand, Conceptual Comparisons: Towards a Coherent Methodology of Comparative Legal Studies, 32 BROOKLYN J. INT’L L. 405, 409-421 (2007).

[3] Jaakko Husa, Farewell to Functionalism of Methodological Tolerance?, 67 RABELSZ 419 (2003).