Methodological Pluralism – A Third Phase of Comparative Law?

Posted on by Anita Frohlich

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.

The Second Phase of Comparative Law – Ernst Rabel and the Focus on (Social) Functions

Posted on by Anita Frohlich

Due to its purely theoretical nature, the Paris Congress of 1900 left many comparatists with an unsatisfied feeling, mostly with regards to the long-term effects the Congress may have on the reception and acceptance of comparative law research. Most agreed that a new approach was needed. This new approach came several years later with the Austrian Ernst Rabel.

Although Rabel saw comparative law as purely scientific in its quest for legal knowledge, his writings also stress its practical implications. He himself openly lived this dichotomy by being professor and judge at the same time. Yet, the demonstrated two-sidedness of comparative law was not Rabel’s main achievement. Thus, Rabel can be seen as the founder of the functional method in comparative law – a method that even today has a prominent place in comparative law research. It is of note, however, that Rabel never personally mentioned and defined this methodology, but that it was later ascribed to him by his students.

The idea to look at legal functions came from Rabel’s mentor, the legal historian Ludwig Mitteis who taught Rabel to look at the functions of historical legal provisions. Rabel subsequently applied this idea to the comparison of modern legal systems. In particular, Rabel encouraged comparative lawyers to distance themselves from the written text of a norm and focus on its context and application instead.

Rather than comparing fixed data and isolated paragraphs, we compare the solutions produced by one state for a specific factual situation with those produced by another state for the same factual situation, and then we ask why they were produced and what success they had. (Rabel in “Fachgebiete des Kaiser Wilhelm Instituts” at 187 as quoted by Gerber, Sculpting the Agenda of Comparative Law, 199.)

The application of this approach can be seen in Rabel’s four-volume treatise on the “Conflict of Laws: A Comparative Study.”

So what makes Rabel’s work stand out from “first-phase comparative law” as defined by the Paris Congress? First, and foremost, Rabel did not restrain himself to the theoretical definition of a methodology (in fact, he did never really define a specific method), but instead focused on the legal realities in different legal systems and compared their solutions for specific legal issues. Second, Rabel explicitly looked beyond the official legal texts and also considered their applications and interpretations. Third, and as a consequence of the second point, Rabel’s method left room to consider the common law and compare it with the civil law systems of continental Europe. In fact, he spent a good part of his later life in the United States.

It is therefore fair to say that Rabel’s new and innovative take on comparative law marks the beginning of the second phase of comparative law. His students and friends propagated functionalism in comparative law by further developing and promoting his original idea to identify specific social functions of legal rules as terra comparationis.

Bibliography

  • David Gerber, Sculpting the Agenda of Comparative Law: Ernst Rabel and the Facade of Language 190-208, in: Rethinking the Masters of Comparative Law (Annelise Riles, ed., 2001).
  • Christine Godt, The Functional Comparative Method in European Property Law, 2 Europ. LJ 73-89 (2013).
  • Max Rheinstein, In Memory of Ernst Rabel, 5 Am. J Comp. L 185-196 (1956).

Paris International Congress of Comparative Law – Culmination and End of the First Phase of Comparative Law Research

Posted on by Anita Frohlich

Raymond Saleilles was one of the driving forces behind the Paris International Congress of Comparative Law in 1900 (Congress). The idea behind this event was that organizing this conference in the framework of the famous Paris World Exposition would draw a broader international audience to the subject of comparative law.

The program of the Congress consisted of a scientific and a practical part, though more emphasis was placed towards the former. The four main goals of the Congress were as follows:

  1. determine a methodology to analyse diverse legislation;
  2. define the role of comparative methods in teaching law;
  3. highlight the relevance of comparative law analysis for national legislation, judicial interpretation and international agreement;
  4. discuss mechanisms for making foreign law more accessible.

Overall, the Congress was methodology-heavy, meaning that its main focus was to envision a way that would facilitate consideration of comparative law in practice (e.g. legal translation) and thus establish comparative law teaching within the university curriculum. No original scientific works of comparative law were discussed. Also, the Congress had a strong continental imprint. Though some jurists from England and the United States attended, common law was completely left out of the picture.

In retrospect, one can argue that the Congress marks the culmination as well as the end of the first phase of comparative law research. The main attributes of this phase are discovery and initial use of comparative law methods for drafting and eventually unification of laws. Comparative law was mostly seen as harmonization tool. In this context, with some distinct exceptions, mainly similar legal systems were considered and compared which essentially limited this kind of comparative law research to continental Europe and its laws.

Bibliography

  • David S. Clark, Centennial World Congress on Comparative Law: Nothing New in 2000?Comparative Law in 1900 and Today, 75 Tul. L. Rev., 871, 875-888 (2001).
  •  Konrad Zweigert & Hein Kötz, An Introduction to Comparative Law (1998), p. 59.