How to Tackle a Comparative Law Problem

Now, that I have established the basics in comparative law methodology, it is time to bring everything together. Therefore, in this post, I will illustrate what steps a comparative law study should follow.

Preliminary Step: Determine the Scope

Typical questions to ask are: How far shall the comparison go? Shall it encompass all legal systems of the world or only a subset of them? Shall it compare a whole legal systems or only specific legal issues? There is no given answer as to which scope to choose. It all depends on your personal strategic goals and resources.

First Step: Get a Concept

Typical questions to ask are: Shall the comparison be intra- or cross-cultural? What legal aspects are to be compared: structures, institutions, functions? At this point, I would also decide what comparative methodology to apply, i.e. functionalism, comparative law and economics, comparative cultures, or a combination thereof.

Second Step: Describe the Data

Now is the moment to compile factual research. Again, it is a matter of personal choice whether to focus on hard facts (e.g. norms) or soft issues (e.g. socio-economic problems). At this point, however, a proper classification is indispensable.

Third Step: Identify Similarities/Differences

Based on the data gathered during the previous step, one can now juxtapose all the similarities and differences found in step two.

Fourth Step: Explain Similarities/Differences

This phase probably depends most on the exact methodology chosen for the comparative work.

Fifth Step: Confirm the Theory

The final step of a comparative study should consist of some generalized statement. Usually, such a statement will formulate a suggestion for improvement or it would demonstrate the general applicability of the study.



Esin Örücü, Methodology of comparative lawin ELGAR ENCYCLOPEDIA OF COMPARATIVE LAW 442-454 (Jan M. Smits 2006).


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