The Functional Method as the Staple of Comparative Studies of European Legal History in the Early 21st Century?

13 Pages Posted: 22 Feb 2018

See all articles by Dmitry Poldnikov

Dmitry Poldnikov

National Research University Higher School of Economics

Date Written: February 21, 2018

Abstract

The Europeanization of legal scholarship and legal education facilitates the emergence of comparative legal science as a promising new tool to discover similarities and differences between two or more jurisdictions and their past development. Yet, the specific methodology of such studies is still not clear. Some legal historians hold that comparative legal history does not or should not have its own methodology other than that of comparative law. Others warn against imposing a contemporary agenda and toolbox on legal history. The author of this article aims to clarify this debate by examining the prospect of applying one of the most popular methods of comparative law – the functional method – to the domain of legal history. On the basis of several examples from the European legal past he claims that examining the functions (the social purpose) of legal norms can help legal historians in three ways: first, to determine the objects of comparison and the sources of analysis, despite the variety of verbal shortcuts (the initial stage of research); second, to analyse legal norms from the perspective of solving social problems in the past – to study the 'law in action'; and third, to arrange the results of the research according to meaningful criteria at the final stage.

Keywords: comparative legal history, methodology, functional method, European legal tradition, tertium comparationis, praesumptio similitudinis

JEL Classification: K10

Suggested Citation

Poldnikov, Dmitry, The Functional Method as the Staple of Comparative Studies of European Legal History in the Early 21st Century? (February 21, 2018). Higher School of Economics Research Paper No. WP BRP 79/LAW/2018. Available at SSRN: https://ssrn.com/abstract=3127475 or http://dx.doi.org/10.2139/ssrn.3127475

Dmitry Poldnikov (Contact Author)

National Research University Higher School of Economics ( email )

Myasnitskaya street, 20
Moscow, Moscow 119017
Russia

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