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.
- 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).