The False Dichotomy between Theory and Practice: Lessons from Comparative Law
RECHTSWISSENCHAFT ALS JURISTISCHE DOKTRIN, pp. 105-128, Claes Peterson, ed., Stockholm, 2011
28 Pages Posted: 29 Nov 2011
Date Written: August 1, 2011
Abstract
Allegedly, there is a conflict between theoretical and practical comparative law. This conflict can be easily detected in any larger standard work on comparative law and in practically all other texts that deal with the epistemology of comparative law. Comparative law, in particular academic comparative law, has a constant struggle with two challenges. On the one hand, it seeks to justify its very existence to doctrinal study of law and to legal practice (e.g. judicial function, law drafting). On the other hand, it wishes to distance itself from practical comparative law. The purpose of this paper is to challenge this dichotomy and to argue that comparative law may not necessarily be conceived only as black or white. This paper claims that this dichotomy between theory and practice is way too crude of an epistemological distinction to be of any value while dealing with the comparative study of law.
Keywords: comparative law, methodology, legal theory
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