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).

Interdisciplinarity – Lessons from Applied Comparative Law

In my previous post, I pointed out that comparative law could benefit from other disciplines. Such incorporation of external research needs to be done in a way that makes it acceptable from a legal standpoint. And principles of (applied) comparative law may just be the key – admittedly a somewhat circular reasoning, but nevertheless something worth looking into.

Applied comparative law considers the question of legal transplants, i.e. which legal provisions could be transferred from country A to country B. In order to determine which law should be transferred, lawyers have to figure out the overall best solution by taking into account what is reasonable and just. Here, the issue of cultural and ideological discrepancies arises: because what works well in country A does not necessarily be acceptable in country B. So in the end, lawyers have to decide on a case-by-case basis whether the prima facie better law is in fact ideal in the country it should be adopted.

So what does this previous paragraph tell us about interdisciplinary comparative law? Adopting an idea or reasoning from another discipline might just be similar to transferring legal provisions from country A to country B. Thus, any effort in incorporating interdisciplinary research has to determine on a case-by-case basis whether a particular idea from another discipline is reasonable and just in the particular comparative law research at hand. In this regard, Giesen proposes a (non-exhaustive) set of questions that any lawyer who considers empirical research should ask himself before incorporating this research into his work: 

– whether the empirical work is in fact relevant for the question of law that arises,
– whether the work is up to the current state of the art in the field methodologically, as well as regards its research design, etc., and its implications,
– whether (more generally) the research is valid and reliable,
– whether there is conflicting empirical work on the same issue,
– whether the study has been replicated and confirmed or not,
– whether the study is but one building block of a larger set of studies needed for policy implications,
– whether the researcher is both an expert and objective and independent, and so on.

The advantage of this approach is that it may help prevent premature adoption of empirical ideas into comparative law research. 

Bibliography

  • Ivo Giesen, The Use and Incorporation of Extralegal Insights in Legal Reasoning, 11 Utrecht L R 1-18 (2015).
  • Konrad Zweigert & Hein Kötz, An Introduction to Comparative Law 33-47 (1998).

Interdisciplinarity in Comparative Law – A Blessing or A Curse?

Interdisciplinary research – the collaboration or conglomeration of knowledge of two or more disciplines – is probably one of the main features in academia over the last 50 years. In comparative law, interdisciplinarity has been honed as the sine qua non. Yet, some have warned against or even criticized interdisciplinary efforts in comparative law research.

Comparative law is often linked with social sciences, economics and linguistics. Some of this interdisciplinary research has been more accepted than the other. Acceptance is usually contingent upon the perceived compatibility of the fields. Thus, comparative law research drawing from legal history is much more recognized than the application of law and economics concepts on a macro-comparative question.

Such bias is unfortunate, because comparative law as a discipline may greatly benefit from thinking outside the box by looking at other – more unusual -fields of research. The challenge is just to make sure that the basic principles of all disciplines combined are kept intact. Generally, collaboration among researchers seems to be the ideal way to go. Yet, unfortunately, legal academia tends not to be very open for that. So another solution might be to ensure better knowledge on an individual level through in-depth study of the other field used.

In subsequent posts, I intend to discuss some recent research on and in interdisciplinary comparative law.

Bibliography

  • Jaakko Husa, Interdisciplinary Comparative Law – Between Scylla and Charybdis?, 9 J. Comp. L 28-42 (2014).
  • Pierre Legrand, Le Droit Compare 3e ed. 47-48 (2009).
  • Geoffrey Samuel,  Does One Need an Understanding of Methodology in Law Before One Can Understand Comparative Law Methodology? 177-208, in: Methodologies for Legal Research: Which Kind of Method for What Kind or Discipline (Mark van Hoecke, ed. 2011).