The Functional Method of Comparative Law

Abstract

The functional method has become the mantra of comparative law. For its proponents it is the most, perhaps the only, fruitful method; to its opponents, it represents everything bad about mainstream comparative law. This article tries to reconstruct and evaluate functionalist comparative law by placing it within the larger framework of other disciplines, especially the social sciences. Such an interdisciplinary analysis yields three promises. First, the interdisciplinary look should enable a construction of a more theoretically grounded functional method of comparative law than is usually presented. Second, the interdisciplinary approach should help formulate and evaluate the concept in order to determine how functional the method really is. Third, comparison with functionalism in other disciplines may reveal what is special about functionalism in comparative law, and why some things about other disciplines would rightly be regarded as methodological shortcomings may in fact be fruitful for comparative law.

Law and Culture: A Theory of Comparative Variation in Bona Fide Purchase Rules

“…In addition, jurisdictions in which there is stronger enforcement of the law, as measured by the number of police personnel and professional judges per 100,000 inhabitants over the 16 The World Value Survey was carried out in five waves in 1981-1982, 1989-1990, 1994-1995, 1999-2000, and 2005-2006; the European Value Study was carried out in four waves in 1981, 1990, 1999. See Ronald Inglehart, World Values Surveys and European Values Surveys, 1981-1984, 1990-1993, 1995-1997-2006(Institute for Social Research 2010 An explanation for these patterns is that in developed markets buyers tend to value goods more than their original owners and, thus, society faces a trade-off between the basic need of safeguarding the original owners' property and leaving some stolen goods in the hands of those who value them the most, that is, the buyers. Since a culture of morality assures that most transactions are legal, condoning some non-consensual transfers is less useful.…”

Lei anticorrupção brasileira e chilena: desafios no combate à corrupção

“…A força do funcionalismo não está apenas calcada nas similaridades entre leis, mas nas diferenças entre elas; demonstra-se como um instrumento poderoso para o entendimento a comparação e a crítica de diferentes leis (MICHAELS, 2005), daí a opção por tal método.…”

Empirical Comparative Law

“…For example, some statutory provision may be very important for shareholder protection in one country but irrelevant in another because of the absence or presence of certain other rules or institutions (Black et al 2014). Similarly, some institution may be important in one country but redundant in another because of the presence of a functional equivalent (on functional equivalence, see Michaels 2006). Whether the measure should take into account such functional equivalents is determined by the measured concept and, thus ultimately, by the hypothesis under investigation.…”