Methodological Pluralism – A Third Phase of Comparative Law?

As previously posted, the first phase of comparative law was marked by the acceptance of legal comparison as tool for harmonizing or improving laws and culminated with the Paris Congress. Ernst Rabel was the originator of the second phase of comparative law which compared laws based on their functions. So the question now is if we are still within this second phase of comparative law or if we have already entered a third phase.

On the one hand, the functional method still enjoys controversial popularity in comparative law today. Thus, a renowned comparative law textbook, Introduction to Comparative Law by Zweigert and Koetz, propagates functionalism as comparative law method. Furthermore, numerous articles have been published discussing the validity of functionalism in comparative law. On the other hand, the functional method is far from uncontested today and several “alternatives” have emerged over the past decades: comparative law and economics, numerical comparative law, cultural comparative law … just to name a few.

Such methodological pluralism may be seen as the defining element of a third phase of comparative law. This phase is characterized by not having a single discernible methodology, but a plethora of sometimes controversial approaches that all have their applicability and validity in specific contexts. It depends on the individual comparative work to determine which of these methods is best suitable to answer the question at hand.

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