The Functionalist Character of Legal Origins

The legal origins literature comes from economists not lawyers. One major criticism has therefore been that legal origins research suffers from oversimplification which can be attributed to a lack of legal knowledge. Simplification, however, may be necessary to some extent in order to facilitate the comparative task. For example, the concept of legal families in comparative law represents a simplified view of the legal systems of the world, but it has been used to make larger-scale comparisons possible.

So then the question is whether using statistics in order to determine performance of laws is too simplistic even for comparative law purposes. The answer is – again – it depends on the scale of the study as well as on the interpretation of the results. In fact, per se  quantitative comparative law based on legal origins is not that different from traditional comparative law. One of the traditional approaches in comparative law is the functional ‘method’. Generally speaking, the functional method sees the function of a law as tertium comparationis – the specific factor as to which laws should be compared. Functionalism in comparative law comes in many facets (this will be the subject of a future post). There is not really the functional method. So the legal origins approach could be really seen as a sub-category of functional comparative law – a “quantitative refinement” (Michaels 2011). Specifically, the legal origins research purports to determine which law performs better – civil or common law. Performance of a law, however, can only be measured with regards to a specific function and laws usually do not have only one function. So in this regard, the legal origins approach seems indeed oversimplified or biased towards the one function the authors deem important and distorts the result that one law is better than the other.

This conclusion does not disqualify legal origins as a valuable approach to comparative law. Most (if not all) of the methods in comparative law so far have their challenges. It is, however, important to be aware of these issues and put the studies into context.

Bibliography

  • Ralf Michaels, The Second Wave of Comparative Law and Economics?, 59 UNIV. TORONTO L.J. 197-213 (2009).
  • Ralf Michaels, The Functionalism of Legal Origins, in DOES LAW MATTER? ON LAW AND ECONOMIC GROWTH 21-40 (Michael Faure & Jan Smits eds., 2011).
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