Functionalism in Comparative Law and Legal Linguistics

With this post, I intend to close the loop by bringing together comparative law and legal linguistics. More specifically, I am going to point out a common denominator of both disciplines: functionalism. Interestingly, functionalism plays an integral part in the development of both areas, though in a somewhat contrary way.

The introduction of functionalism to comparative law has been attributed to Ernst Rabel. Its establishment, however, as a core comparative law methodology is due to the detailed treatment of functionalism by Konrad Zweigert and Hein Kötz in one of the most popular comparative law textbooks Introduction to Comparative Law. According to them, the term functionalism stems from the premise to focus on the functions of the law as the tertium comparationis when comparing two or more legal systems. The question is where to look for the functions of the law: only the written law or law as it is practiced, including social norm or culture. It is safe to say that strict focus on the written law alone is no longer acceptable in comparative law. The extent, however, to which a comparatist should consider other non-traditional sources of law is still subject to great discussion.

Legal translation has traditionally been extremely technical with an exclusive focus on semantics. Any divergence from the text strictu sensu was unacceptable. Only recently, legal translators started to look beyond the text as written. As a result, functions and social purpose of legal norms are becoming more and more relevant in legal linguistics. This kind of functionalism in legal translation is still far from uncontested as it opens the field for interpretation and subjectivity.

This very brief synopsis of the methodological development of comparative law and legal linguistics illustrates the key part functionalism played – and still plays – in both of these fields. Interestingly, the significance of functionalism in these areas seems to be orthogonal. Thus, modern comparative law criticizes functionalism as being too strict and not giving enough consideration to cultural diversity in law. For legal translation, however, functionalism represents a step towards more flexibility that allows a translator to also include cultural aspects into his work.

Bibliography

  • Giuliana Garzone, Legal Translation and Functionalist Approaches: a Contradiction in Terms? in Legal Translation: History, Theory/ies and Practice. Proceedings of the International Colloquium, Univ. of Geneva, 395-414 (2000).
  • Jaakko Husa, Comparative Law, Legal Linguistics and Methodology of Legal Doctrine, in: Methodologies of Legal Research, Hoecke and Ost (eds.) 209-228 (2011).
  • Konrad Zweigert and Hein Kotz, An Introduction to Comparative Law 33-47 (1998).
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