The Traditional Methods of Comparative Law

Abstract

Comparative law has grown out of its traditional theoretical and methodological boundaries. However, much of comparative law scholarship may still be described as traditional. This chapter discusses traditional view of comparative law research. What can be characterised as traditional comparative law has concentrated on private law of major Western legal systems, leaving other areas of law and non-Western systems mostly aside. It is not clear what can be labelled as traditional methods, nonetheless, we can separate three essential issues. First issue concerns the research process and how traditional comparative law scholars have outlined it. Traditional comparative law scholarship typically provides guidance on how research should be conducted. Second issue deals with a specific method – coined as functionalism – that has been recommended to be used in the comparative research. At the heart of the functionalist methodology lies the assumption according to which there are legal rules or institutions that serve a certain social function. Third issue concerns the underlying assumption behind functionalism i.e. universalism. Universalism maintains that every society faces essentially the same problems, and that societies solve these problems by different means though often with similar results. Chapter ends with critical analysis and thoughts about the future of traditional methods.

Keywords: comparative law, method, functionalism, universalism