Comparing law: practice and theory

Abstract

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Reflections on the Pactum in the Public and Private Spheres

“…More importantly for our purposes, from a purely Comparative law perspective, these accounts seem to find a unifying sentiment in the belief that the comparative method is an 'empirical, descriptive research design using "comparison" as a technique to cognise', 81 as well as in those accounts that define Comparative law in terms of a multi-featured 'disciplined practice'. 82 Considering, on the one hand, Pascal's suggestion that there is nothing in the real world that can escape the explanatory temptation of scientific reason and, on the other hand, the wave of disciplinary borrowing described above, it is anything but a coincidence that these claims seem to be in line with the school of thought according to which culture is a 'moral and cognitive experience' and that '[a]ny juristic study is . .…”

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

“…Valcke (2012, p. 33) observed in her study of French and English contract law that ‘mismatches between subjective intention and objective declaration, or the concern to consecrate yet also discipline party intention’ were common to both places. Adams and Griffiths (2012) found enough similarity in modern European health-care 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 ‘extra-legal’ solutions to a social problem. One exception is Adams and Griffiths (2012) in their comparative study of euthanasia laws that included consideration of ‘para-legal’ sources of law, which in their research context meant internal organisational rules and professional guidelines. According to Michaels (2006, p. 364), comparative lawyers’ tendency to only take account of formal legal rules and their application is ‘a flaw in practice, not in method’.…”

“…This should be done through ‘dialectical interchange’ so that researchers become aware of their cultural biases and the problems of translation (Nelken, 2005, p. 247). Adams and Griffiths (2012, p. 286) suggest that the comparative researcher should ‘proceed in a spirit of conceptual tentativeness, seeking continuously to smoke out normative preconceptions’.…”

“…I follow the lead of some other researchers (Husa, 2003; Samuel, 2014; Valcke, 2012; Adams and Griffiths, 2012) 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 the wider social context, as well as the ultimate futility of a search for completely unbiased comparative concepts.…”