Against ‘comparative method’: explaining similarities and differences

Abstract

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Comparative Methodology and Pluralism in Legal Comparison in a Global Age

“…According to Adams and Griffiths, "there is no single comparative method because there is no single question" if you compare domestic and foreign law. The method will mostly vary, from formalism ("law in the books") through legal realism ("law in practice") to various sorts of functional comparison (Adams & Griffiths, 2012). Furthermore, the presence of different forms of pluralism-a pluralism of pluralisms-implies a constant and urgent need to reconsider the adequacy of the methodological tools have been used up to now by comparative lawyers.…”

“…Since the first approach, a comparative lawyer is alone (Merryman, 1999). He lives with "his epistemological prejudices, his attitude towards the absurd consequences of the theories that he accepts" (Feyerabend, 1978;Adams & Griffiths, 2012). According to Palmer, "method is now identified by the 'techniques' by which comparisons are carried out.…”

The functional approach in comparative socio-legal research: reflections based on a study of plural work regulation in Australia and Indonesia

“…Adams and Griffiths (2014) found enough similarity in modern European healthcare systems and the problem of how to approach end of life decisions to be a basis for comparison of euthanasia laws and related practices.…”

“…A literature search has discovered few studies that have explicitly used the functional comparative method and included both 'legal' and 'extralegal' solutions to a social problem. One exception is Adams and Griffiths (2014) in their comparative study of euthanasia laws which included consideration of 'para-legal' sources of law, which in their research context meant internal organisational rules and professional guidelines. According to Michaels (2006:364), comparative lawyers' tendency to only take account of formal legal rules and their application is 'a flaw in practice, not in method'.…”

“…I follow the lead of some other researchers (Husa 2003;Samuel 2014;Valcke 2014;Adams and Griffiths 2014) in seeing functionalism as a very useful beginning point in the comparative process, provided that its inherent limitations are recognised and that certain additional analytical steps are taken. These limitations include the impossibility of drawing strong causal connections between law/norms and behaviour, and between the differences observed and wider social context, as well as the ultimate futility of a search for completely unbiased comparative concepts.…”