Now that I have pointed out the singularity of the Cornell Project, I would like to make the connection with functionalism. (For an introduction to functionalism, see an earlier post.)
In a nutshell, functionalism starts on the premise that legal systems face similar problems for which they may take different measures yet in the end reach similar results. The common core method suggests that legal systems despite their prima facie diversity share a common core. So both methods are based on the idea that legal systems are not completely singular but have their commonalities.
If we look at the way comparative studies are performed, both methods are not that different either. Indeed, functionalism suggests a three-step-process while the common core method evolves around four steps. Yet, the last step of the functional method could be sub-divided into two separate steps as to exactly match the common core approach. The following table shows how the two methodologies relate to each other.
| FUNCTIONALISM | COMMON CORE |
|---|---|
| Statement of the problem (in functional terms). | Working paper with questions and hypotheticals. |
| Objective presentation of solution by each legal system examined. | Individual reports by country experts answering questions. |
| Comparison. | Discussion of individual reports. |
| Evaluation from purely functional perspective. | General report pointing out differences and commonalities. |
So what does this mean? Are functionalism and common core method all and the same? Not really. Functionalism can be seen as a very broad methodology that has many facets – one of which is the common core method. The common core method, in turn, brings its own distinct aspects into the game, mostly the questionnaires and the seminar discussion. The Cornell Project (and now the Common Core of European Law) can be seen as examples how a functional analysis can be performed on a larger scale as a collaborative effort.
CompareLex 