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.

Mixed Legal Systems in a Cultural-Traditional Context

Posted on by Anita Frohlich

In my previous post about mixed legal systems, it became evident that the conventional definition of a mixed legal system is influenced by Western ideas of a division of legal systems into two groups: civil law countries and common law countries. Such a concept is insufficient for the growing importance of non-Western law in today’s global community. Both Patrick Glenn’s idea of legal traditions and Csaba Varga’s concept of legal culture try to break with convention in order to make more remote legal systems workable for comparative law. The question is whether and how they deal with mixed legal systems.

Patrick Glenn in his Legal Traditions of the World, deals with the civil law tradition and the common law tradition in two different chapters. His focus is, however, more on their different roots that led to two different methodologies than their mixing. As a result, mixed legal systems are rather neglected.

Csaba Vargas’ starting point, in turn, is the heterogeneity of laws. For him, legal systems are intrinsically diverse. Consequently, any classification into any specific group – it being civil, common, or mixed – is artificial in nature and only serves to facilitate the comparative task.

Bibliography

  • PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD (2004). A newer edition is available.
  • William Twining et al., A Fresh Start for Comparative Legal Studies? A Collective Review of Patrick Glenn’s Legal Traditions of the World, 2nd Edition, 1 Journal of Comparative Law 100-199 (2005).
  • Csaba Varga, COMPARATIVE LEGAL CULTURES: ON TRADITIONS CLASSIFIED, THEIR RAPPROCHEMENT AND TRANSFER, AND THE ANARCHY OF HYPER-RATIONALISM 2012.

What is Legal Culture?

Posted on by Anita Frohlich

In my last post, it became evident that culture should play a role in comparative law research. Yet what exactly is legal culture? While the strong interrelationship between law and culture has been emphasized since Baron de Montesquieu published his De L’Esprit des Lois in 1758, the concept of legal culture is still unclear. Historically, the term “culture” has nationalistic connotations, mostly due to its use by German romanticism. Today, the term legal culture is often used to talk about the “living law” as opposed to the law in books. Frequently, lawyers refer to Western law as opposed to other legal cultures. In this context, legal culture serves as a general term to indicate law in action in a particular system or region. Seen in this way, however, legal culture does nothing to improve or extend the study of comparative law, but is just a vehicle to distinguish the West from the rest. Still, Csaba Varga employs the term legal culture in order to establish a new interdisciplinary area of research (he calls it comparative legal cultures) that intends to study legal systems not only from a legal stand point, but also from a sociological, philosophical, historical and anthropological perspective. According to Varga

“[…] the term ‘legal cultures’ […] stands for an operative and creative contribution, through social activity rooted in underlying social culture, to express how people experience legal phenomenon […], how and into what they form it through their co-operation, how in what way they conceptualise it, an in what spritit, frame and purpose they make it the subject of theoretical representation and information.” (Varga, p. 182).

In return, Patrick Glenn has pointedly criticized the use of the term legal culture in comparative law. Instead, Glenn prefers the term tradition which he defines as follows:

“A given tradition emerges as a loose conglomeration of data, organized around a basic theme or themes […].” (Glenn, p. 15)

Consequently, legal tradition is transmitted information pertaining to the concept and content of law. Legal traditions are explicitly border-less, meaning they extend beyond the conventional limits of legal systems. This is probably the key element that distinguishes legal traditions from the historic concept of legal cultures. And what are the implications of this dispute for comparative law? In practical terms, because legal culture is such a vague concept, authors should specify their individual definition of culture. More generally, the fact that terms like legal culture and legal tradition are extensively discussed in current comparative law literature shows the importance of legal pluralism for modern comparative law research.

Bibliography

  • Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (2004).
  • Jaakko Husa, Legal Culture vs. Legal Tradition – Different Epistemologies?, Maastricht European Private Law Institute Working Paper Series 2012/18, available here.
  • Ralf Michaels, Legal Culture, available here.
  • Csaba Varga, Legal Traditions? In Search for Families and Cultures of Law, 46 Acta Juridica Hungarica 177-197 (2005).