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.

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

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).

The Common Core Method and the Theory of Legal Formants

Sacco’s dissectioning the legal rule in a number of legal formants is the methodological step forward most useful for modern common core analysis.(from the Common Core website)

A discussion of the common core method in comparative law would be incomplete without mentioning the theory of legal formants that was introduced by Rodolfo Sacco.

Legal formants can be defined as all the elements that constitute the ‘living law’ of a country. They may vary in type and number from one country to another. Thus, it is probably impossible to compile a list of all legal formants that exist. Instead it is important to become aware of the three different kinds of perceptibility of legal formants. A part from the official sources of law, i.e. cases and legislation, other factors also influence how law is practiced in a particular country. Some of these other factors are more obvious, e.g. scholarly interpretation and judicial reasoning. Sometimes the elements of a legal phenomenon may only be partially obvious. Sacco calls the partially obvious legal formants synecdoche. In other cases, legal formants may be completely hidden. Sacco calls these hidden legal formants cryptotypes.

Cryptotypes (and to some extent probably also synecdoches) only become apparent when more than one system is examined through comparative study. Ideally the comparative lawyer, though privy to the legal systems discussed, is sufficiently detached as to abstract from the obvious rules in order to elicit implicit patterns and practices.

Three interesting contrasts are those between statute and the law as applied, the law as applied and the law as described, and between the situation the law deems to be normal and the situation that is normal in a sociological sense. (Sacco, infra, p. 378)

Through these implicit practices, rules that are prima facie contrary to each other, may indeed not differ from each other at all. It is the task of the comparative lawyer to discover such hidden commonalities among legal systems. And this, again, leads us back to the basic goal of the common core method in comparative law.

Bibliography

  • Rodolfo Sacco, Legal Formants: A Dynamic Approach to Comparative Law (Installment I of II), 39 Am. J. of Comp. L 1-34 (1991).
  • Rodolfo Sacco, Legal Formants: A Dynamic Approach to Comparative Law (Installment II of II), 39 Am. J. of Comp. L 343-401 (1991).