Power, Culture and Method in Comparative Law

Abstract

This review essay draws on a recently edited handbook by Esin Orucu and David Nelken to reflect on the methodological concerns and challenges of comparative law and socio-legal research. It argues that the contextualisation of laws should be regarded as the indispensable methodological characteristic of all comparative studies of law that aspire to transcend the understanding of law as a body of rules and doctrine. It further argues that although the cultural perspective facilitates contextualisation of the law, a cultural understanding is neither a precondition for undertaking comparative legal research nor necessarily the correct approach under all circumstances; for certain aspects of law and legal behaviour need not be conceptualised in cultural terms. The essay concludes by proposing that the combination of top-down and bottom-up approaches could provide a meta-methodological framework within which specific comparative techniques can be employed. Such a framework will enable comparatists and socio-legal researchers to account for how law interacts with, and simultaneously manifests itself at, the macro, micro and the intermediary meso levels of society over time.

Keywords: Contextualisation, comparative law, socio-legal research, power, legal culture, pluralism, legal traditions, methodology, harmonisation, unification, interdiscipliniarity

JEL Classification: K1, K2, K3, N2, N4, k49