When looking for comparative law methodology, one will inevitably come across functionalism. This method has been adopted from the social sciences in the first half of the 20th century. Today, it is probably still the most prevalent method used in comparative law studies.
The popularity of the functional method (in contrast to the fate of functionalism in other areas of political or social sciences), is mostly due to its very specific step-by-step definition by Hein Koetz. In the following paragraphs, I will first explain how the functional method works and then make an assessment of its use as a comparative law tool.
How Does the Functional Method Work?
For the functional method the tertium comparationis is the function of a law, i.e. its social purpose. In its most prevalent form, functionalism in comparative law rests on the following three premises:
(1) legal systems face similar problems; (2) for the same problem, different legal systems take different legal measures; (3) despite differing measures, legal systems reach similar results.
Based on these premises, the functional method in comparative law has three steps: (1) statement of the problem in purely functional terms, without being influenced by the own legal system; (2) one-by-one objective presentation of the ways in which different legal systems resolve the legal problem; (3) comparison and evaluation of the preceding analysis from a purely functional perspective.
Assessment of the Functional Method
The functional method, as depicted above, looks like an appealing way to give some methodology and structure to comparative law. It is, however, only one of many functionalist approaches to comparative law. I might come back to the different facets of functionalism in a later post.
A general problem of functionalism is that laws often do not have one single function, but serve unintended functions, several functions or no function at all. More importantly, the premise that legal systems face similar issues is problematic given the cultural diversity of our society as a whole. Thus, especially when it comes to legal issues that involve questions of moral or values, the functional method in comparative law is not very helpful.
- KONRAD ZWEIGERT & HEIN KOTZ, AN INTRODUCTION TO COMPARATIVE LAW 33-47 (1998).
- Oliver Brand, Conceptual Comparisons: Towards a Coherent Methodology of Comparative Legal Studies, 32 BROOKLYN J. INT’L L. 405, 409-421 (2007).
- Jaakko Husa, Farewell to Functionalism of Methodological Tolerance?, 67 RABELSZ 419 (2003).
- Ralf Michaels, The Functional Method of Comparative Law, in: OXFORD HANDBOOK OF COMPARATIVE LAW 339-382 (Mathias Reimann & Reinhard Zimmermann eds., 2006).