6

Basic Strategies in Comparison

I. INTRODUCTION

C
OMPARATIVE LAW RESEARCH contains several phases, ie
the comparative law approach has to be conceived as a process.
Comparative research is a chain of separate studies where the over-
all comprehension of the study topic is a gradual (hermeneutical) process.
The comparative process can be conceived of as a series of operations,
which are carried out by the comparatist and which in the end have a final
outcome, ie a publication or a thesis.
Usually, the scientific study process has a specific predetermined course
where getting acquainted with the study subject proceeds via intermediate
phases (data collection, description, analysis, conclusions etc) to reporting
on the study in the form of a publication. In comparative law, however,
study is practically never a one-way process that proceeds like a train.
Occasionally there will be setbacks, and the scholar has to backtrack and
either to reinterpret or dismiss the idea they have earlier assumed. In con-
trast, the application of foreign law in court is inevitably a more one-way
process due to the internal normative viewpoint and timetables: courts are
obliged to produce answers to legal problems put to them. Comparative
law as a form of non-national legal research rests on different assump-
tions. Accordingly, engaging in comparative law teaches methodological
humbleness—getting disheartened is not an option and the energy caused
by annoyance is not approved of and should instead be channelled into
new attempts.
By and large, comparative law research follows philosopher and great educational
thinker John Dewey’s (1859–1952) pedagogical basic idea, ie ‘learning by doing’.
This kind of pedagogy refers to an experiental way of learning. This kind of learn-
ing involves learning through experience and reflection on comparison in which
the learning process of the comparatist as an active individual is at the forefront.
Experiental learning does not mean that the theory and methodology of compara-
tive law would be useless, but it does point out that the process of comparing
laws is always also about learning-by-doing. A positive side-effect here is the de-
mystification of the research process—comparative research is not a mysteriously
cumbersome challenge which is necessarily confusing and intimidating. One of the
underrated features of comparative law methodology is its ability to promote not
 Introduction 97

only quality of research but also to encourage positive attitudes towards research
and experiental learning.1
It should also be noticed that the phases in the research process are interac-
tive. This means that the next phase of the process can have a specifying
effect on the previous one or it can change it altogether. Comparative study is
in continuous movement by nature. By reading and interpreting source mate-
rial, acquiring additional information and comparing material from different
sources we can make advances in charting the differences and similarities of
the systems compared and in the attempt to give them rational explanations.
And this process also includes personal reflection of the comparative research
steps taken by the comparatist themselves. Different phases alternate, and
occasionally returning to the basic assumptions is needed. In this sense the
work of the comparatist is rather similar to that of the national doctrinal
scholar even though the epistemic viewpoints on law are different. The phi-
losopher would talk about a hermeneutical circle of comprehension and the
pedagogue of a learning process, ie experiental comparative law learning.2
All study processes contain phases where selections, limitations and
clarifications are needed for the process to continue. The comparatist too
has to make choices that determine how the research proceeds. One has to
decide which legal systems (or other large-scale organised normativities) to
compare and which elements are selected for comparison. What is the data
like (extent/depth) and which factors influence its acquisition process? How
is the material acquired? How good are the scholar’s own language skills?
Is field study needed or is it possible to manage the project by using only
documented material that already exists? The choices made depend on the
aims of comparison as well as on the comparatist’s own knowledge-interests,
ie there is no one-size-fits-for-all methodology. If one wants to study the cus-
tomary law of an indigenous people, the Internet naturally is not a sufficient
source of knowledge. Or if one seeks to have knowledge about preparatory
phases of statutory law in a ministry, then one does not interview indigenous
tribe elders. A more practical point is that the availability of sources—not
only their comprehension—is also of significance in this respect.

A. Method—Methodology

Learning is an important part of doing comparative law, but even learning

has to start from somewhere. A lawyer, and not even a comparative lawyer,

1 Dewey’s ideas on education are best presented in his book Experience and Education

(New York, MacMillan, 1938) in which he explains his educational philosophy.

2 For a more detailed discussion about how hermeneutical theory may provide useful

principles for educational thinking, see S Gallagher, Hermeneutics and Education (New York,
State University of New York Press, 1992).
98 Basic Strategies in Comparison

is never genuinely in a tabula rasa situation. Comparative law as an activity

that is goal-oriented and that pursues new knowledge cannot start from a
completely haphazard starting point, but depending on the study approach,
methodological choices concerning the acquisition and use of study material
have to be made both before and during the study. There is a distinct differ-
ence here with regard to private international law in which the court is in
a different situation, because procedural rules are domestic and are applied
without choice as they are the legally binding valid legal rules of a country.
In research, one of the fundamental characteristics is the systematic
nature of approaches and the desirability for as high a degree of their justifi-
ability as possible. It is essential that approaches that have been chosen can
be rationally justified and explained to others. Also the comparatist needs
a basic research strategy, which has been drafted in advance by taking into
account the goals of comparison and probably the feasibility of the research
results that are possible to obtain.
Method can refer to a very specifically defined scientific study approach in which
case methodology refers to a theory on such scientific methods. A method is in this
respect a particular way in which a chain of study steps are taken in a predeter-
mined way (Latin modus operandi). In natural sciences the exactness, the numeri-
cal accuracy and predictability of the phenomena are emphasised. In economics,
modelling and statistical methods are heavily referred to. But, in legal study the
concept of a method and methodology are essentially more extensive and far less
exact as to their nature. Here, legal research does not differ from other cultural
studies or humanities.
Grounds for this kind of broad conception of method and methodology are found
in the word method itself because the word is actually formed from the Greek
words metá (μİIJȐ) and odós (ȠįȩȢ), which mean following a path or a certain
route. Combined these words form μȑșȠįȠȢ, ie a method. In comparative law a
method denotes all practices and operations by means of which pieces of informa-
tion describing phenomena are collected and the justifiable rules on the basis of
which interpretations concerning the study topics are formed and argumentatively
expressed. Owing to the pluralisticity of law, it is also a question of a plural mat-
ter, ie of methods. Plurality makes sense: many laws, many legal cultures and
many legal languages must also mean many methods.
It is owing to legal culture, the ultimate study object of comparative law,
that the method cannot be seen in a way that emphasises exactness, which
is the case in natural sciences and other disciplines that extensively use
quantified methods. In comparative law, method really is a path to be fol-
lowed. From there it follows that the methodological hints and guidelines
presented in this very book should be taken as tips on how to walk the
path. In the general methodology of comparative law it is not possible to
present a clear-cut methodology with accurate demarcations for the simple
reason that the study subjects and knowledge-interests of scholars differ
from each other.
 Introduction 99

Professor Esin Örücü, an expert on the theory and practice of comparative law,
has fittingly stated on the methodology of comparative law: ‘how this comparison
is to be carried out has no standard answer’. Furthermore, according to her it is
not even possible to speak in exact terms about the methodology of comparative
law but of ‘methods employed in comparative law research’.3 Notwithstanding,
in spite of the restrictions it is possible to present some sort of methodological
guidelines. The possibilities, however, vary according to the different themes stud-
ied. According to Professor David Bradley, comparative family law would pass
for social science: ‘Comparative legal studies in this area involve applied political
analysis: as such comparative family law qualifies as a social science’.4
Notwithstanding, in comparative law the usual starting point is easy
and clear. Comparative law can in principle use any method as long as
it is possible to get answers to the questions that interest the comparat-
ist. In general, the research process in comparative law is hermeneutic,
ie understanding in nature, and it looks at different legal systems both
from the outside and from the inside. The hermeneutic approach aims at
understanding and interpreting the legally relevant behaviour of people,
legal culture or legal text and explaining the meanings involved in legal
language. This kind of approach is typical also in qualitative social science
and the humanities.
The fact that in comparative law the aim is to explain differences and
similarities that have been found does not make it any less hermeneutic: it
is a question of what kind of study process is used to explain legal culture
and what factors are taken into account. Hermeneutic explanation becomes
possible through comprehension since statistics do not replace the creative
study process of the interpreter and the hermeneutical viewpoint of the
comparatist. Statistical data are useful and in most cases underused in
comparative law, but the comparatist must also remember that no statistics
explain why the judge feels tied to the doctrine of the sources of law of their
country or why certain legal institutions are so peculiar if looked at from
the outside (eg common law trusts and equity).
The basic strategies of comparative study can be divided by qualitative
criteria into two parts. Strategy here simply means a plan by means of
which aims set for comparison are sought. On the one hand, methodologi-
cal choices of a technical nature have to be made while, on the other hand,
strategic basic choices of a theoretical nature must be made. They do not
follow each other in strict chronological order but more likely take turns
during the study process. However, making this difference is not always
unproblematic because the theoretical and technical aspects are often
interrelated as has become clear above. Professor Elina N Moustaira from

3 E Örücü, ‘Methodology of Comparative Law’ in J Smits (ed), Elgar Encyclopedia of

Comparative Law (Cheltenham, Edward Elgar, 2006) 442–54, 446.

4 D Bradley, ‘Family Law’ in Elgar Encyclopedia, 2nd edn (2012) (n 3), 314–38, 333.
100 Basic Strategies in Comparison

Greece puts this well in her book about Legal Influences in the Framework
of Comparative Law:
The methods used or those that ought to be used are complicated because they are
activated in a variety of different levels (of research) and the higher the level, the
harder it is to distinguish methodology from epistemology and theory.5

B. Methodological Choices of a Technical Nature

The technical nature of the methodological choices made in comparative

law refers to their close connection with the study material (collected data).
The study material can consist of official material (statutory law, precedents
etc) only, of knowledge about the application practices and customary law
or knowledge of the attitudes and beliefs of the professionals in law. In con-
nection with strategic choices of a technical nature, the scholar has to decide
on matters that to a great extent determine what the nature, coverage and
method of acquisition of the material are like. And these are questions that
should be pondered before the actual acquisition of material and knowledge.
In this connection, at least five different technical basic choices can be told
apart. During the study process these phases can alternate, and the comparat-
ist can end up changing the basic solution they had originally made. Naturally
the list is not exhaustive, but it probably covers the most common basic meth-
odological choices that sooner or later come up when comparing laws.
Technical-Methodological Alternatives
1. Micro/macro
2. Longitudinal/traverse
3. Multilateral/bilateral
4. Vertical/horizontal
5. Monocultural/multicultural

II. SCOPE—FROM MACRO TO MICRO

A. Comparison—Macro and Micro

In comparative law study a basic division between the micro-level and

macro-level is possible just like in economics. In economics, micro-economics
studies small economic units (individuals, enterprises, individual lines of
business) and the economic decisions made by them. Macro-economics

5 ‘ȅȚ ȝȑșȠįȠȚ ʌȠȣ ȤȡȘıȚȝȠʌȠȚȠȪȞIJĮȚ Ȓ ʌȠȣ ʌȡȑʌİȚ ȞĮ ȤȡȘıȚȝȠʌȠȚȠȪȞIJĮȚ ȞĮ İȓȞĮȚ ʌİȡȓʌȜȠțİȢ įȚȩIJȚ

İȞİȡȖȠʌȠȚȠȪȞIJĮȚ ıİ ȝȚĮ ʌȠȚțȚȜȓĮ įȚĮijȩȡȦȞ İʌȚʌȑįȦȞ țĮȚ ȩıȠ ȣȥȘȜȩIJİȡȠ İȓȞĮȚ IJȠ İʌȓʌİįȠ, IJȩıȠ ʌȚȠ
įȪıțȠȜȠ İȓȞĮȚ IJȠ ȞĮ įȚĮȤȦȡȚıșİȓ Ș ȝİșȠįȠȜȠȖȓĮ Įʌȩ IJȘȞ İʌȚıIJȘȝȠȜȠȖȓĮ țĮȚ IJȘ șİȦȡȓĮ’, E Moustaira,
ǻȚțĮȚȚțȑȢ İʌȚȡȡȠȑȢ ıIJȠ ʌȜĮȓıȚȠ IJȠȣ ȈȣȖțȡȚIJȚțȠȪ ǻȚțĮȓȠȣ (Athens, Sakkoula, 2013) 27.
 Scope—From Macro to Micro 101

investigates extensive economic phenomena that take place on the national

or international level (business cycles, economic growth, unemployment,
international trade etc). On the macro-level the point of view is more gen-
eral than it is in micro-economics. A similar basic distinction based on the
level of study also applies to comparative law. The micro/macro-dimension
is related to the extent to which different legal systems are compared, ie
owing to its fundamental nature it is a question of scale and focusing.
The distinction is defined, for example, by Professor Gilles Cuniberti in
his work about Great Contemporary Legal Systems: ‘On the micro level it
is possible first of all to compare certain institutions or special issues…. On
the macro level comparison focuses on the function of legal systems and
their fundamental features’.6
In micro-comparison the object of study is either individual legal rules (or
a legal rule) or individual legal institutions (or an institution). Legal institu-
tion can in this context refer to two things. On the one hand, a legal institu-
tion can refer to a positive law institution, such as a court, administrative
organ or a legal person such as a limited liability company/corporation or a
foundation. For instance, the notary institution that operates in Continental
Europe and is lacking in Nordic countries is an example of a significant
legal-cultural institution. On the other hand, several different normative
and operational legal institutions, such as marriage, trusteeship, bankruptcy
or transfer of guardianship are mostly micro-level legal institutions.
In micro-comparison, research can be aimed at legal rules (also individual
legal concepts), which regulate broadly the same thing and are compared
with each other. For example, comparative family law studies the differ-
ences and similarities in the way in which different systems deal with,
for example, adoption, marriage and civil union/partnership, marriage
settlement and marital right to property, property of the spouses, potential
divorce, care and visiting rights of children and paternity etc. Legal rules
have to represent at least two different legal systems, but the upper limit
in the number of regulations or legal decisions compared depends on the
personal interests and the economic work factors of the scholar and on the
resources available (opportunity to travel, timetable, availability of sup-
porting personnel etc). In most cases the comparatist should probably not
gather too many study objects because one can become lost in the depth of
the analysis. In fact, as a rule of thumb, it is often worth saying a lot about
a little, not a little about a lot.
In micro-comparison, provisions or judgments are legal solutions of a concrete
nature to legal problems. It can, for example, be a question of comparing norms

6 ‘À un niveau micro-juridique, il est tout d’abord possible de comparer des institutions

particuliéres, ou des questions particuliéres … À ce niveau macro-juridique la comparaison a

alors pour objet le fonctionnement des systémes juridiques, et leurs caractéristiques fondamen-
tales’, G Cuniberti, Grands systèmes de droit contemporains, 2nd edn (Paris, LGDJ, 2011) 13.
102 Basic Strategies in Comparison

that regulate the position of a party in an administrative appeal. What do they

have in common and how do they differ? What is the reason for similarities and
differences? Do the systems under study have a separate organisation for adminis-
trative jurisdiction or are the issues on legal rights in public administration solved
in general courts? Traditional micro-comparative study of legal institutions has
been practised in private law for quite a while. As an example we can mention
the massive work about marriage and divorce by British jurist William Burge.7
The extensive comparative study of gifts by American Professor Richard Hyland
is a more recent example of an extensive and in-depth study of a single legal
institution.8 The majority of micro study has up until now concentrated on differ-
ent sectors of private law; however, public law comparisons are far more frequent
these days than they used to be.
In macro-comparison comparison takes place between legal systems or even
between legal families/cultures. Macro-comparison does not concentrate on
individual legal rules, institutions or concrete problems and the ways by
which to solve them; instead, the abstraction level of the topics compared is
higher. Comparison could for example be aimed at issues that concern, for
example, legislative methods, the style of writing provisions, the branch of
law systematics and the doctrine of legal sources or even the style of entire
legal systems, ie legal cultural-features characteristic of them (see chapter
nine).

B. New or Old—Micro or Macro

In macro-comparison several different theoretical frames have been used

(more on this later). To begin with, comparatists debated about legal
families, but later on several other macro-constructions appeared along-
side them; the best-known of them being legal cultures and the latest legal
traditions. All of them basically concern the same thing: the typification of
legal systems into bigger groups according to their characteristics. Macro-
comparison has for a long time been at a standstill, but in 100 years at least
some progress has been made. In fact, one of the large legal families of the
twentieth century, ie socialist law, has almost managed to disappear.
At the beginning of the twentieth century, race, nationality and culture were still
significant concepts and played a key role in the classification and typification
of different legal systems. For example, according to the influential classifica-
tion made by the prominent Swiss comparatist Georges Sauser-Hall (1884–1966)
in 1913, the legal systems of the world could be classified into the laws of the
following: (1) Aryan peoples (Indo- European peoples); (2) Semitic peoples;

7 W Burge, The Comparative Law of Marriage and Divorce (London, Sweet & Maxwell,

1910, originally 1838, pt 3 in the Series Commentaries on Colonial and Foreign Law).
8 R Hyland, Gifts—A Study in Comparative Law (New York, Oxford University Press,

2009).
 Scope—From Macro to Micro 103

(3) Mongolian peoples (main groups being Japan and China); and (4) uncivilised
(barbarous) peoples, including for example the law of Negroes (sic!) and the law
of Melanesians.9
Racist classifications like the one above have absolutely no place in modern com-
parative law: racism is of its nature against the basic assumptions of comparative
law and the deep ethical commitments of study. A modern comparatist must not
practise intellectual colonialism or implicitly prefer the paradigms of their own
Western law to the solutions made in radically different legal cultures—fallacy of
superiority has no place in modern comparative law, no more than the feeling of
inferiority. Instead, one should aim towards a balanced research, which tries to
study, compare, explain and learn from different legal cultures.
It seems obvious that in the twenty-first century in particular, the nature of
macro-comparison has changed. The differences between legal cultures are
no more emphasised so much; instead, more attention is paid to their simi-
larities, and models are constructed on how different legal traditions can
live side by side in a peaceful relationship. Dreams about a uniform global
law that would follow Western legal culture have been buried; pluralism
is flourishing. The demarcation between micro- and macro-comparison is
all but clear as it is quite flexible. It is often possible to use both points of
view in a study so that they complement one another in such a way that
one of the approaches is chosen for the starting point for comparison. The
micro-comparatist might have to get acquainted with the history and gen-
eral doctrines of foreign legal systems in order to understand better how the
individual rules and institutions under study work as a part of the entity of
the legal system and legal culture. On the other hand, the macro-comparatist
might have to study individual norms or single cases to understand what
significance the general characteristics of the legal system being studied has
on the level of legal practice.
A good example of a classic work that has already been forgotten is the study by
Ernest Glasson (1839–1907) that was published in the late-1800s and is called
‘The Civil Marriage in the Antiquity and in the Principal Modern European
Legislation’.10 In his study, Glasson divided marital right to property into categories
according to macro-principles by separating systems that had been influenced by
Roman law, systems that were immune to Roman law, ie common law, and systems
that combined ideas from Roman law and national laws. Glasson’s approach would
still today be a plausible method for connecting micro- and macro-comparisons:
the micro-approach is analysed on the basis of the division at the macro-level.

9 See G Sauser-Hall, Fonction et méthode de droit compare (Geneva, Kundig, 1913) (droits

aryens et indo-européens, droits sémitiques, droits mongols, droits barbares). Sauser-Hall

really based his classification on race; each race had its own legal evolution which could be
found inside each race (‘qu’à l’intérieur de chaque race’, 63).
10 E Glasson, Le mariage civil et divorce dans l’antiquité et dans les principales législations

modernes de l’Europe (Paris, Durand et Pedone-Lauriel, 1880). Reprinted by Nabu Press in

2011.
104 Basic Strategies in Comparison

In the light of the above, one might be tempted to ask why in general
should the study of micro- and macro-levels be kept apart? Indeed, there
are no reasons for too rigid distinctions in a discipline so pluralistic as to
its nature. It is a question of the basic point of view or of a kind of angle
of incidence to comparative study where the question is of the recognition
of the comparatist’s own knowledge-interest. A micro-comparatist can
never completely exclude the macro-level from their study, nor the macro-
comparatist the micro-level. For example, the basic nature of an Islamic
marriage as an agreement between families can easily remain an oddity
if the comparatist does not know Islamic legal culture in general. In the
same way the rule of law in Western legal culture remains insignificant if
attention is not paid to what it means in different application cases and
what kind of ideologies and legal-historical developments there are in the
background. Most creatures in the sea of law are like icebergs: only the top
is easy to see, and most of the mass is below the surface.

III. IN TIME AND SPACE—THE TIME DIMENSION

The comparative aspect concerning the longitudinal and immediate (present

time) dimensions is related to the issue of historical comparative law that
was discussed in the previous chapter. This is a question of the time dimen-
sion before/past—now/present that is connected to the acquisition of the
basic material for the study; in other words, if the law being compared is
in force (so-called valid law) or if there is included in the comparison legal
material that is no longer in force.
German comparatists and legal historians have already, for a while,
been talking about the fact that law exists simultaneously in two different
dimensions, which are impossible to keep apart. Law is simultaneously in
time and space (German Zeit und Raum). While a micro-comparatist, in
particular, is often interested in how a rule or legal institution works at the
present time, another comparatist with a more theoretical orientation can
also be interested in how the provision or institution in question has earlier
worked in other legal cultures. We can possibly talk about the descent of
law, genealogy of law or even the genetics of law (see chapter ten).
In the ordinary setting of comparative law it is a question of compari-
son that is related to the present time and where the interest is not in first
and foremost in the law of the past. When comparative law is practical in
nature, it is often also horizontal comparison because the court or legislator
which is aiming at socio-legal solutions is generally not ex officio interested
in provisions or the legal history of the past. Longitudinal comparison,
on the other hand, takes points of comparison also from legal history and
therefore its character is often more theoretical and its nature is to focus on
general knowledge. In the longitudinal comparison (or comparative legal
 In Time and Space—The Time Dimension 105

history if you prefer) one or more legal systems in different periods of time
are studied comparatively.
According to most theorists of comparative law, the historical aspect
in comparison is particularly important, because in order to understand
the content of rules, principles and doctrines in a foreign legal system,
one has to know their historical development, too. Yet, knowledge of the
historical development is not necessarily related to theoretical compara-
tive law only because efficient use of legal innovations made in another
legal system may require knowledge of the historical development of
the norms and institutions under study. In the same way, Juha Raitio,
Professor of EU law, has emphasised the need for a more profound
understanding of EU law, so that when decisions of the EU Court are
evaluated, the circumstances and situation at the time of the decision-
making are taken into account.11 By means of the contextualisation of
recent history that Raitio is referring to, it is according to him possible to
better understand also the substance of practical legal issues of EU law.
In other words, it is not a question of a matter of curiosity or academic
dandyism: temporal contextualisation may be crucial for a normative
and internal standpoint, too.
How about legal loans and borrowings? It is in fact easy to transfer legal
institutions and ways of thinking from one country to another by means of
statutory law but, and here lies the problem, it is impossible to transplant
the legal-political-social milieu. Legal culture that has been formulated in
the legal-historical process cannot be turned into an export product. So,
in practice legal transplants can result in a certain rejection (unpredictable
complications, disturbances and unexpected consequences) in the legal
system at the receiving end. This is the case even if the adopted loan were
modified and tailored to fit.

A. Transplants and Loans

The study of legal transplants (or transfers, transpositions, translations)

and legal loans as well as the copying of ideas or legal colonisation is a
research field where the connection between legal history and comparative
law is most clearly demonstrated. The follow-up of a legal idea presumes
understanding of its legal content (to some extent) in both the legal sys-
tem and the receiving court. In a certain way, it is a question of a kind of
detective work where the detective follows in the footsteps of a suspect by
means of indirect proof and the power of deduction. The challenge is to
hold the strings together and build out of them a comprehensible narrative
with a plot.

11 See J Raitio, The Principle of Legal Certainty in EC Law (Dordrecht, Kluwer, 2003) ch 1.
106 Basic Strategies in Comparison

The well-known Scottish legal historian and legal comparatist Alan Watson, in
his classic work Legal Transplants, which was published in 1974, introduced
the concept of a legal transplant.12 In Watson’s theory it is important for a legal
transplant to have a historical connection between the systems or more precisely
between the regulations of the systems. In other words, it is not a question of a
reception where it could be specifically indicated what has been adopted from
the foreign law, when the adoption took place and how the moving actually hap-
pened. What is essential is only the ‘relationship of one legal system and its rules
with another’. By the process of moving Watson simply meant the moving of a
rule or a system of law (mainly Roman) from one country to another.
It is useful to keep in mind that in the theory of legal transplants the ques-
tion was expressly of adoption of the central idea, not necessarily of word-
to-word copying. When on the basis of a foreign model a corresponding
construction of one’s own law is moulded, it is possible to say that foreign
law has been borrowed and thereby the legal culture of the receiving
country has been affected. In this way the law of the United States has
had a significant impact on European systems in the legal fields related to
commercial activity from the mid-twentieth century (eg leasing, factoring,
franchising). The theme is of particular interest for comparative law. Study
on borrowings and legal transplants breaks the idea of the nationality of
law and its bonds to a system by pointing out the reciprocal relations that
cross these national restrictions. Here we can quote the idea of Pihlajamäki:
global law consists of both national and international ingredients, both of which
are in a continuous and accelerating movement. To perceive this whirlwind of
continuum and interruption, a kind of legal supernova lawyers need them.13
The longitudinal study of comparative law is, basically, just the sort of the-
oretical approach that in the quotation is referred to as perceiving the legal
supernova. However, engaging in a study like that is not a particularly
easy task for lawyers. For example, the criticism of the transplant theory
was severe from the very beginning. A famous comparatist Kahn-Freund
presented the best-known early criticism, which turned out to be quite
influential.14 He justified his criticism with the significance of the social
context of law. According to him, the whole concept of transplant was out
of place in the world of law, although it was possible to refer with it mean-
ingfully to a surgical operation in which a kidney of one individual was

12 A Watson, Legal Transplants: An Approach to Comparative Law, 2nd edn (Athens GA,

University Georgia Press, 1993).

13 H Pihlajamäki, ‘Vertaileva oikeushistoria muuttuvassa maailmassa’ (2009) 38 Oikeus

420, 423.
14 See O Kahn-Freund, ‘On Use and Misuse of Comparative Law’ (1974) 37 Modern Law

Review 1 (‘its use requires a knowledge not only of the foreign law, but also of its social, and
above all its political, context’, 27).
 In Time and Space—The Time Dimension 107

transplanted to another. According to the core of Kahn-Freund’s argument

‘we cannot take for granted that rules or institutions are transplantable’.15
Now, if one looks at the idea of transplantation something seems to be
rather evident. It would be essential to observe the societal context of law,
or the result could be transplant rejection in the new system. In the case of
a legal loan it is influence that takes place in a mutated form. Here is the
thing: a mutated loan is still a loan although in some respect it is a loan
gone wrong. The success of a loan is not the same thing as making a loan
as such because one can certainly copy a rule or an institution from another
country, but whether it really works in the receiving system is quite another
question.
Later the transplant criticism swelled over its limits in the comparative
law discussion: in the 1990s critical comparatist Legrand presented his
relativistic view of the sheer absurdity of (mainly private law) legal trans-
plants.16 Currently concepts like legal translation, legal transfer and legal
transposition are used. The great majority of comparatists continue to use
legal transplant either solely or in parallel to other conceptualisations.
Notwithstanding, it would seem that Watson’s original concept has become
rooted to the theory and terminology of comparative law—in spite of its
problematic nature. Altogether, it would seem, the most severe criticism
against Watson’s transplant metaphor has been the idea of replacing it with
the concept of legal irritant.
Discussion has continued, and for the concept of legal transplant various replace-
ments have been proposed, with one of the best known among them being the
proposal in 1998 by Gunther Teubner who represents the theoretical sociology
of law. Teubner emphasised the fact that the result of transplantation can be any-
thing. Therefore, we should not speak of a legal transplant but of a legal irritant.17
Teubner’s most important idea in this respect is related to the nature of the trans-
plant, because in Watson’s thinking the transplant appeared to be something that
can be controlled and somehow predicted. Teubner denied this and stressed that
when something is transferred from one foreign legal culture to another, some-
thing happens, but not what is expected: it is not transplanted into another organ-
ism, rather it works as a fundamental irritation which triggers a whole series of
new and unexpected events. In other words, what follows the transplantation is
certain evolutionary legal dynamics whose consequences it is extremely difficult,
if not impossible, to predict.

15 ibid.
16 See P Legrand, ‘The Impossibility of Legal Transplants’ (1997) 4 Maastricht Journal of
European and Comparative Law 111.
17 See G Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up

in New Divergencies’ (1998) 61 Modern Law Review 11 (‘it works as a fundamental irritation
which triggers a whole series of new and unexpected events’, 11).
108 Basic Strategies in Comparison

Independent of the type of conceptualisation that is selected, legal bor-

rowing has continued to increase with internationalisation, globalisation
and European integration. To be sure, legal diffusion, borrowing, copying
or transplanting does take place—it is, however, quite a different ques-
tion with regard to how well it actually works and whether it leads to the
desired results or not. So, it may as well be that Michaels has a fair point
when he says that ‘we may grudgingly have to admit that Alan Watson is
not, in the end, as uninteresting as we make him out to be’.18 Whatever
criticism we may pose, it remains a fact that the migration of law is taking
place everywhere or, as Tohidipur puts it: ‘Legal rules are extracted from
one context, transferred and implanted in another context, or migrate
across sometimes fluid borders and so on’.19

IV. QUANTITY

In comparative research the strategic basic solution of a technical nature

can in addition to the depth or time dimension be related to the number of
sources, ie legal systems from which the material is gathered. In bilateral
comparative law, comparison takes place between two (at the most) differ-
ent legal systems. The advantage of bilateral comparison is the concentra-
tion on strictly limited material (from two systems only), which means that
only a few cases are studied, but they are studied thoroughly. Bilateral com-
parison (or comparison among a very small number of legal systems) can
also be called case-oriented. The aim is to get as deep as possible into the
legal systems compared by getting acquainted with their general doctrines
and historical development in detail.
Case-oriented study can be seen as qualitative or idiographic (ie con-
cerned with unique facts like in history) in its nature. The results achieved
by it are not considered to represent knowledge that is empirically general-
isable; instead, it is a question of profound comprehension and explanation
of individual cases. This does not, however, mean that knowledge created
by means of case-oriented study approach could not be applicable in other
cases, too, as the grouping of legal families in fact proves. In comparative
law there are both idiographic case studies, where only a few legal systems
are under study and a certain aspect in them is thoroughly observed, and

18 R Michaels, ‘One Size Can Fit All’ in G Frankenberg (ed), Order from Transfer—Studies

in Comparative Constitutional Law (Cheltenham, Edward Elgar, 2013) 56–78, 78.

19 T Tohidipur, ‘Comparative Constitutional Studies and the Discourse of Legal Transfer’ in

Frankenberg, Order from Transfer (n 18) 29–35, 33.

 Quantity 109

a nomothetic (ie inductively reasoning) study approach as appears in the

research on the legal origin theory.
The comparative study on judicial reasoning and legitimacy by Mitchel de S-O-l’E
Lasser is an example of a valuable study that concentrates in depth on a small
number of cases.20 Lasser studies comparatively the French Court of Cassation,
the Federal Supreme Court of the United States and the EU Court. In this study
the differences in the argumentation used in the application of law are shown in
how judges argue and explain when they decide cases and how the judgments
are justified. Here is the thing: the conclusions made by Lasser are not capable
of generalisation; instead they expressly only concern the systems studied when
presenting the ways in which superior courts in these systems justify their judg-
ments: it is a question of understanding the legal cultures in the systems studied
and the positioning of the supreme judicial decision-making in the overall context
of the legal culture.
In multilateral comparative law, more than two legal systems are compared.
This kind of approach can be characterised as variable-oriented study, the
most significant advantage of which is the great number of cases studied.
This means that the degree of the generalisability of knowledge increases,
but the weakness of the reach (how deep into the legal culture or context of
law the study reaches) is a problem. In variable-oriented study it is not easy
to get beneath the surface, and the study remains simply as an organised
description of mere written provisions or other formalities.
Examples using a refined quantitative analysis are in particular to be found in the
sphere of the legal origins theory where statistical data and methods of statistics
are regularly used. A more recent example, and possibly more relevant from the
point of view of comparative law is an article by Martin Gelter and Mathias Siems
about citing foreign law in courts. This article provides interesting quantitative
evidence, from the European supreme courts, in order to assess the usage of cross-
citations over borders.21
In the light of the previous discussion, from the point of view of the compara-
tive law methodology, two useful basic considerations can be presented. The
first point is that the number of objects in comparison is subordinate to the
scholar’s own knowledge-interest. If the purpose is to review quickly different
alternative normative models (rules, principles, doctrines, precedents etc), one
can cast the net as widely as one would desire without a worry. Simply, the
purpose is to find out what possibilities there are on the whole ‘on the map
of solutions’ for the legal question that interests the scholar. It is a question of
charting basic alternatives descriptively. Secondly, it has to be noted that the
number of solutions correlates with the depth of the study. A useful rule of

20 See M de S-O-l’E Lasser, Judicial Deliberations—A Comparative Analysis of Judicial

Transparency and Legitimacy (Oxford, Oxford University Press, 2004).

21 M Gelter and M Siems, ‘Citations to Foreign Courts—Illegitimate and Superfluous, or

Unavoidable? Evidence from Europe’ (2014) 62 American Journal of Comparative Law 35.
110 Basic Strategies in Comparison

thumb could be the following: the more objects of study there are, the more
limited is the study in its depth; and the fewer objects of study there are, the
deeper it is possible to dig into the foreign law and legal culture.
Yet, in some cases, an idiographic anthropological method is virtually the only
possibility as, for example, when studying oral Inuit law, which uses gossip and
banishment as forms of normative social control. Even though Inuit law does
not work in similar ways to Western State-centred law it is clearly an organised
form of normativity within a human community. So, such essential Inuit expres-
sions as maligait, piqujait and tirigusuusiit refer to something that has to be fol-
lowed, done or not done (normativity). Today, these expressions are often used
as equivalents for modern Western concepts of law, and for comparative law this
seems to work relatively well although the legal-cultural contexts are very differ-
ent. Today, Canadian law is a generally accepted form of law among Inuits who
still perceive Canadian laws as a qallunaat (ie not Inuit, but white people as a
group) institution.22
The above can be explained in plain English: if the research of a strictly
limited question in, for example, three systems is one’s main job and the
time spent on the project is four years (ie typical time used to complete a
PhD-thesis), then without a doubt one gets deeper into these three legal
cultures than the person who spends the same four years studying the same
question in 12 systems. However, this is just a rule of thumb and does not
recognise the differences in the skills of the scholars and researchers or
other resources available to the comparatist.

V. THE DIVERSITY OF LEGAL SYSTEMS—TRANSNATIONALITY

The verticality and the horizontal aspect are related to the question of the
different theoretical character of legal systems. National legal systems are
not the only legal systems, as they can be of different types. For instance,
in this book the expression of large-scale organised normativity has been
used. Legal systems can be classified on the national–international axis
although this division is rough and also otherwise losing some of its sig-
nificance. A continuously growing share of national norms either origi-
nate in international law or are otherwise caused by international legal
obligations.
Also supranational law has to be added to the axis. The EU law that
forms its own legal system, which is partially independent of national law
and international law, represents supranational law, while the jurisdiction
of international organisations is in general limited by the sovereignty of
States. Somewhere there are also the practices that are applied in cultural

22 See eg N Loukacheva, ‘Indigenous Inuit Law, “Western” Law and Northern Issues’

(2012) 3 Arctic Review on Law and Politics 200.

 Transnationality 111

sub-groups, such as Inuit, Hindu, Islamic, Sámi and Jewish family law, and
the customary norms of the indigenous peoples, which have not been recog-
nised by the official system/official systems in spite of their empirical local
efficiency. However, in some cases the State-system officially recognises all
different normative bodies as sources of law, for example in Ghana. Owing
to the diversity of legal systems, the decision on the level of the legal systems
to be compared is among the decisions of a technical nature.
Horizontal comparison concerns comparison between legal systems from
among different legal systems (eg on the national level USA—Finland—
France), which, however, are qualitatively on the same level, ie there is some
formal equivalence. Vertical comparison on the other hand is carried out
among legal systems that are qualitatively of a different level, which means
that comparison can concern the fair judicial procedure within, for example,
international law, EU law or the legal systems of States. Vertical comparison
has as its starting point the following: (1) the very existence of different legal
systems and (2) the parallelism of different legal systems. The more there
is pluralism, the more polycentric levels of various normative systems, the
interdependence of which is not to be organised by means of a simple hier-
archy. And it has to also be noticed that different norms adjust to each other
and somewhat change in the interaction. For example, common law courts
can with their decisions convert customary law or business practices into
precedents more easily than in the civil law systems. Civil law, in turn, tends
to convert other generally accepted normativities in the form of positive law.
Different influences get mingled, which the so-called angrezi sharia proves. This is
a question of the fact that in the UK the official law is the dominant system, but
Muslim law has become a kind of parallel unofficial law that is observed alongside
the official system. Muslims feel that they are being bound by the Shari’a law and
the modern English law. In practice devoted Muslims adjust their own interpreta-
tions of Shari’a but do not abandon it. In the words of David Pearl and Werner
Menski: ‘South Asian Muslims in Britain appear to have built the requirements of
English Law into their own traditional legal structures’.23

A. Transnational Law

Over the last few years in comparative law research and discussion sev-
eral themes and fields of study have emerged that deviate from the earlier
prevalent horizontal, ie traditional, comparison between States. The glo-
balisation of law and partly the legal integration in Europe have had an
impact on this. Yet, this new kind of comparative law approach has several
features that are typical of the earlier comparative law: the core desire to

23 D Pearl and W Menski, Muslim Family Law, 3rd edn (London, Sweet & Maxwell,

1998) 75.
112 Basic Strategies in Comparison

cross national borders in knowledge acquisition, the pluralistic view of the

sources of law, as well as multiculturalism and the methodological openness
compared to the national doctrinal study of law. Now, the most interesting
and challenging of these new dimensions is the so-called transnational law.
It is not just a question of a new field of law but also a new method to
perceive law in a way that is independent of vertical levels and old national
‘container-boxes’ of law.
Transnationality is not only related to law, but it refers in a more general
way to the legal processes and relations, which cross the borders of nation-
States and in which central actors are no longer the traditional States, as
in international law. The concept of transnationality is not new because as
early as in 1956 Professor Phillip Jessup challenged—in anticipation of the
future—the conceptual and disciplinary limits that both public and private
international law set for the supranational dimensions of law. According to
the definition of Jessup, transnational law included: ‘all law, which regulates
actions or events that transcend national frontiers. Both public and private
international law are included, as are other rules, which do not wholly fit
into such standard categories’.24 As late as in the twenty-first century the
development has turned Jessup’s pioneering concept into a promising new
point(s) of view. By means of it, it is possible to assess the challenges of the
present and future law that are less bound by the paradigms of earlier legal
thinking.
The rise of transnational law requires changing the traditional Western
ways of thinking about law and methods with which it is studied: it is also
a question of recognising the global relations of dependence and influence.
Transnational law is evolving in a field that is tension between the local and
global. It also breaks the traditional demarcation between public law and
private law and between official and unofficial law.
Transnational law obscures the traditional distinction between the horizontal and
vertical viewpoints and at the same time challenges the earlier way of thinking
of law as being a phenomenon that originates from and within a State. Around
the world the discourse about transnational law has acquired features of a fash-
ion (fashionable phenomenon). One example is the number of scholarly journals
published: over the last few years a number of US journals have come out such
as: Transnational Law & Contemporary Problems: A Journal of the University
of Iowa College of Law, Ashburn Institute Transnational Law Journal, Journal
of Transnational Law & Policy, Vanderbilt Journal of Transnational Law, Trans-
national Law Review and Columbia Journal of Transnational Law. In addition,
plenty of training programmes for jurists have sprung up. In them the leitmotiv is
either transnational law or global law. Programmes have also been created outside
of the United States, particularly in India but also elsewhere.

24 P Jessup, Transnational Law (New Haven, Yale University Press, 1956) 1–2.
 Transnationality 113

Having said that, actual transnational legal research does not in fact yet exist. One
of the most interesting sketches of this new borderless—kind of universal—legal
discipline is the book The Mind and Method of the Legal Academic (2012) by
Professor Jan Smits from the Netherlands. Smits speaks openly for normative but
international/non-national legal disciplines without any yearning for the old ius
commune. Even though not clearly underlined by Smits, his approach seems very
much like a modern version of the earlier German idea of Universaljurisprudenz.25
So far the colossal problem in the transnational point of view is its lurking
cultural bias: it seems to be distinctly the result of Western legal thinking.
Jurists speaking about it are either from the West or have assumed the
Western way of legal thinking. As a theoretical model and discourse, trans-
national law could, however, include also epistemological dimensions that
are non-Western. In many respects Islamic law, for example, can be seen as
a kind of transnational law. Once again, it is a question of the point of view
taken. For the Western comparatist Islamic legal culture poses a challenge
because in the West law is associated mainly with nation-State whereas in
Islamic legal culture law is governed mostly by the personal dimension which
is defined on the grounds of religion or possibly even a sect within religion.
The Islamic world of Muslims forms in principle one big community (ummah)
where the central uniting factor is the religion. Within that community Islamic law
has great significance although regional and disciplinary differences are clear. While
the central source is the Koran and Sunna, the transnational dimension is seen in the
legal consensus (ijma) of the community. Ijma refers to the legal consensus regard-
ing basically any matter related to sharia. Importantly this consensus on judgements
crosses the borders of States and is, thus, basically transnational as to its character.
In the literature the expressions Sunna and hadith (speech, statement) mean the same
in practice, ie the tradition of Prophet Muhammed. In a more detailed sense Sunna
refers to all acts of the Prophet that create norms, while hadith refers in a more lim-
ited way only to what the Prophet has uttered. The term Sira that is used in literature
covers both dimensions. Basically the hadiths uttered by Muhammed as the Prophet
are normative, while those uttered in other roles (eg as a husband) are not normative.
Now, Islamic law is certainly a significant legal culture, but it is not a monolith.
Islamic jurisprudence is divided into schools of which the best-known five main
schools are equal, at least in principle. The schools are Hanafi, Maliki, Shafi’i and
Hanbali and the Shia school Ja’fari. Among these schools there are slight differences
in individual issues and emphases, for example in connection with the marriage law.
And, the comparative law approach has a special role in Islamic law
because it is, as described by Chibli Mallat, ‘an essential component of the
contemporary Muslim world, because the enactment and interpretation of
all “modern” legislation in every Muslim country is subjected to scrutiny

25 J Smits, The Mind and Method of the Legal Academic (Cheltenham, Edward Elgar, 2012).
114 Basic Strategies in Comparison

for its compatibility with Islamic law’.26 An example is provided by the

Constitution of Pakistan, Article 227 of which deals with provisions relat-
ing to the Koran and Sunna. According to this article, ‘All existing laws
shall be brought into conformity with the Injunctions of Islam as laid down
in the Holy Quran and Sunnah … no law shall be enacted which is repug-
nant to such injunctions’. In a general sense, Islamic law is a similar type of
overall legal yardstick as human rights are for most Western countries: legal
systems are evaluated by using a common yardstick, which is used when
compatibility is being monitored. Furthermore, in a certain sense Islamic
law is like a religiously tuned early version of transnational law.

VI. CULTURAL DIMENSION AND THEIR OVERLAPPING

The focus of this book, and simultaneously of modern comparative law, is

legal culture that extends beyond the boundaries of the formal legal system.
Together with thinking that emphasises legal pluralism, legal culture is
elemental enough to widen the gap between private international law and
comparative law. Culture can also have a different role to play as a part
of the study process of comparative law. One of the methodological basic
choices in comparison can concern the cultural grounds on which the legal
systems for the comparison are selected. For example, when Western and
non-Western legal systems are compared, it is a question of cross-cultural
comparison. The fact of whether or not the countries in other respects
belong to the same more general cultural sphere does not have a decisive
influence because the decisive factor is the nature of the legal system (or
more restrictedly of some limited field of law).
It has been underlined throughout this book that the legal-cultural dimension is
of the utmost importance to the comparative study of law. Surprisingly perhaps,
the embeddedness of law in culture has proved to be a difficult thing to conceive
for Western lawyers. Legal anthropologist Lawrence Rosen puts this well: ‘It is
no mystery that law is part of culture, but it is not uncommon for those who, by
profession or context, are deeply involved in a given legal system to act as if “The
Law” is quite separable from other elements of cultural life.’27 For the comparat-
ist, aiming to understand and explain the connection between culture and law, ie
the context of law cannot be sneered at.

26 C Mallat, ‘Comparative Law and the Islamic (Middle Eastern) Legal Culture’ in M

Reimann and R Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford,
Oxford University Press, 2006) 609–39, 611.
27 L Rosen, Law as Culture: An Invitation (New Jersey, Princeton University Press, 2006)

6 (‘law is so deeply embedded in the particularities of each culture that carving it out as a
separate domain and only later making note of its cultural connections distorts the nature of
both law and culture’, xii).
 Cultural Dimension and their Overlapping 115

Comparison is intracultural when it takes place between two or more

legal systems that are part of the same legal culture. For example, it would
be easy to see that comparison between the systems of appeal in Sweden
and the People’s Republic of China is cross-cultural. If a corresponding
comparison would take place between Denmark and Norway, it would
clearly be comparison within the same cultural sphere. The choice between
these two basic approaches depends—just as in connection of the earlier
choices—on the aims of comparison and the knowledge-interest and pref-
erences of the comparatist. Also language skills (the ability to benefit from
legal information in foreign languages) are of importance.
The availability and intelligibility of the material can influence the choice,
too. Accordingly, if the aim is to make a profound scholarly study of Islamic
law, this could be difficult unless the scholar reads Arabic. In this way, if a
Nordic comparatist is interested in Finnish law, they can go astray if they
settle for non-Finnish source material: formally the picture can be right but the
legal-cultural reach of such a half-hearted attempt remains low. The ‘Nordic
problem’ with Finland may be that in spite of the official status of Swedish (as
a minority language), it is difficult for an outsider to get a full legal-cultural
picture of Finland unless they are also able to benefit from material in Finnish.
In connection with the basic strategic solutions of a technical nature it
has to be observed that different elements can indeed be mixed together in
comparison, or they can be part of the same study while simultaneously
forming successive or alternating phases. It would be easy to assume that
longitudinal study is always case-oriented (idiographic) in nature because
it attempts to give demanding historical explanations. However, this idea
that at first sight seems obvious is not true as, for example, historical com-
parison carried out by means of time series proves. Studies carried out in
the sphere of the legal origins theory demonstrate this, even if there are
problems involved with them.

A. Too Many Sources?

The increased number of different legal databases and their increasingly

easy availability via the Internet has opened up lots of opportunities for
quantitative technical-strategic basic solutions in comparative law study.
Old-timers in the twentieth century could only have dreamt of the pos-
sibilities of today. In the same way, through the Internet it is at present
considerably easier to get material on foreign law than was the case in the
past: legislation, case law and legal literature are available in abundance
through the Internet. In fact, paradoxically, the past lack of sources has
been replaced by a huge oversupply.
Be that as it may, the abundance of sources does not change the basic
epistemic challenge of comparative law: how can a Western comparatist
116 Basic Strategies in Comparison

understand, say, the tradition of Hindu law? Or the other way around,
the foundation and the quintessential ideas of Hindu law differ to a great
extent from Western paradigms, but still Hindu law has its own place for
example in India, whose system mainly seems to follow the common law.
To comprehend Hindu law one has to combine different historical layers by
means of which it becomes possible to understand at least English sources
(let alone the Sanskrit ones).
Hindu law (dharma, ie a kind of natural order) is old but it too has changed. A
significant change in the historical development of Hindu law occurred in the
sixteenth century when India fell under Islamic rule, and the jurisdiction and ad-
ministration fell under the influence of Islamic law. The formal position of Hindu
law improved in the British period of the nineteenth century when it was given an
official status. The British period also meant restrictions in the sphere of Hindu
law because its application was limited to certain fields of law while at the same
time the British general law with regard to India was correspondingly expanded.
The British power, on the one hand, advanced the position of Hindu law but,
on the other hand, prevented its spread to new fields of law that had been born
because of social development. As a practical result of the Anglo-Hindu law the
classical Hindu law and jurisprudence started to weaken or at least petrify.
The applications of classical dharma were altered in the British period and, for
example, the legal fields concerning private property and the law of obligations
were formulated solely as a result of the common law. The attempts of British
judges and administrators to follow Hindu law in their decisions were due to an
insufficient knowledge base that was often distorted and fatal for the development
of Hindu law. As a result, a combination, which was not quite Hindu law nor Brit-
ish case law (there was a general development of a similar type in British Africa),
was created. In general, courts were expected to apply the common law in their
decisions, but it was possible that Islamic or Hindu law was applied if it was a case
of family law or law of inheritance. The basic situation is still the same although
India, of course, is an independent State.
Today modern Hindu law carries and develops the tradition of Anglo-Hindu law
in India. Modern Hindu law is a similar type of personal legal system along with
equivalent systems for Muslims and Sikhs. So, even though there is change and
mutation, there is also continuation and evolution of the Hindu legal tradition.
Menski points out that: ‘there will always remain an element of dharmic founda-
tion in the legal system applying to, and being applied by, Hindu people’.28
A new problem has taken the place of the earlier lack of sources; now they
are in abundance. The comparatist has to screen the information given by
the sources and to carefully assess their up-to-datedness and reliability. All
this requires a combination of several approaches and connecting different
ways of knowledge acquisition and analyses. All the same, it is essential

28 W Menski, ‘Postmodern Hindu Law’ (2001) SOAS Law Department Occasional Papers

1–42, 30.
 Methodological Choices of Theoretical Nature 117

that the comparatist is able to reconstruct the contents of foreign law/legal

culture in the light of the (reliable) sources that they have had access to.
The ease of finding sources has not changed the necessity of legal-cultural
literacy (knowledge that specifically relates to law): on the contrary, it has
gained more significance. To be sure, there is an overload of comparative
law information which requires knowledge gained through studying foreign
law. To conclude, today it is not enough merely to find sources but also to
be able to decide which sources are to be trusted and which are to be treated
with due suspicion.

VII. METHODOLOGICAL CHOICES OF THEORETICAL NATURE

In most cases, theoretical choices of methodology come up at the stage

when the preliminary research material has been gathered, and some sort
of picture of it has been formed. The comparatist has in their material
acquired some sort of legal-cultural ‘biopsies’ or ‘snapshots’ of the legal
systems that they study. It is of course impossible to grasp the whole legal
system or entire legal systems to be studied simultaneously, which means
that the material acquired (provisions, court judgments, knowledge of legal
practices, legal history etc) is a reconstruction of the actual study subject/
object. Such a fictive biopsy is also a specimen of the legal culture and lan-
guage of which the comparatist has to form a personal understanding and
from whose sources they have to be able to operate when research opera-
tions are carried out.
During the orientation that is part of the first stage, the comparatist has
to construct a preliminary idea of how they will proceed in the study: what
will be studied, ie what is compared on the basis of which comparison
is executed so-called tertium comparationis, see chapter seven, and what
the basic strategy is by means of which the comparison proceeds. Here
the question is of the second-stage contact with the data. Basic theoretical
methodological choices have to be made and a more general theoretical
frame of reference has to be planned. It is important to see that more spe-
cific choices cannot be made without a reasonable amount of preliminary
knowledge. Various methodological choices do not form a particularly
logical continuum. However there are, although the list is certainly not
exhaustive, at least four such basic choices:
Basic Theoretical-Methodological Alternatives
1. Functional comparison
2. Structural comparison
3. Systemic comparison
4. Critical comparison
118 Basic Strategies in Comparison

VIII. FUNCTIONALITY—FUNCTIONAL COMPARATIVE LAW

In traditional mainstream comparative law the aim has been to solve the
methodological problem of comparability by consciously trying to ignore
the surface level of law. Instead of comparing only legal texts (legislation,
cases), attempts have been made to find out how the basically same socio-
legal problem (in the form the comparatist recognises it or thinks to have
recognised it) has been solved in these different systems. Ultimately the aim
of this kind of comparative law is (on the basis of the source material) to
conceive what in each legal system is typical and what its relation is to the
surrounding society, political and economic systems and culture. In practice
this ought to happen by analysing differences and similarities in relation to
the same socio-legal problem, for example, such as dissolution of a mar-
riage, control of the constitutionality of laws or entering into a valid con-
tract or a common method in judicial decision-making (why this procedure,
why not the other procedure etc).
Study that represents mainstream research has been built on the rec-
ognition of similar legal problematising for decades. It is a question of a
comparative study approach that belongs to the sphere of comparative
mainstream research and mainstream theory and which is customarily
called functional comparative law. This approach has not developed in
a vacuum but was first influenced by such scholars who were engaged in
private international law. In short, it was polished into its present form by
private law comparatists. This approach is still in the epicentre of the main-
stream study although postmodern critical comparatists have increasingly
criticised it from the end of the twentieth century. The problem with the
criticism is that the critics have not been able to offer a similar type rule of
thumb—a method or approach that would be at least reasonably explicit.
Indeed, it is easy to dish out destructive criticism while constructive criti-
cism is difficult in methodology.
On the other hand, insights offered by critical comparative law also con-
cern the law in itself and the fact that traditional comparative law has not
been able to, say, reveal the questionable social hierarchies that the systems
have created. It has been argued that by means of critical comparison it is
possible to pinpoint more clearly the mechanisms of social power and con-
trol, which have been hidden by the legal language and the quasi-objective
legal structures and in most cases remain unobserved by the normative
doctrinal study of law. According to the critique, functional comparatists
have generally accepted the approaches and outcomes of each system they
have studied more or less as such. This approach, where law is accepted
without critical questions, is said to prove that functionalists have up to the
last few years implicitly shared the doctrinal internal view of law held by
national jurists.
 Functional Comparative Law 119

The situation is however changing, and there are visible cracks every-
where in mainstream comparative academia. This development has
coincided with the weakening of the traditional scholarly umbilical cord
between private international law and comparative law.

A. The Same Idea as a Starting Point

In functional comparison the problem setting typically takes the form in

which legal institutions and practices in the legal systems studied have a
similar problem-solving function. In functional comparison the aim is to
localise how the same (or almost the same) socio-legal problem X is solved
in different legal systems. The provisions and practices to be compared
are selected because the aim is that by means of them the same socio-legal
problem could be solved, and therefore the aim is to find functional equiva-
lences. In other words, in functional comparative law the research frame is
built on the factual (in the opinion of the comparatist)—not conceptual or
terminological—analogy of the institutions and provisions compared.
Functional comparative law has long been in the position of being the
basic methodology in the academic literature concerning the field while
others have mainly complemented it. The fundamental idea of functional
comparison is based on the fact that different provisions, institutions or
normative practices can in different legal systems have similar functions. In
turn, provision and legal practices which are similar at face value (eg termi-
nological similarities) can in different legal systems have different functions
in spite of their superficial similarity, ie linguistic similarities (so-called
‘false friends’ syndrome) are not the same thing as legal similarities. False
friends refers to a situation in which the comparatist finds pairs of terms,
institutions or legal words in two (or more) legal languages that appear
linguistically similar (ie they have the same or almost the same form) but
differ significantly in content.
For example, if the comparatist would like to study the methods for control-
ling the constitutionality of Acts in the Finnish, US and German systems, they
would find hardly anything of significance unless they were to search for func-
tional equivalences. When the scholar asks the basic functional question of which
institutions control constitutionality in these legal systems, for Finland they would
end up with the Constitutional Committee of the Parliament, for the USA with the
Supreme Court of the United States and for Germany the Federal Constitutional
Court. This example reveals that different organs carry out the same function.
On the other hand, organs with exactly the same name (cf false friends) can func-
tionally have considerable differences, as comparison between the President of
Germany and the President of the USA proves. The former is mainly a representa-
tive organ while the latter is an organ with a considerable constitutional preroga-
tive. Homonymy (which is a special type of false friends situation) is a problem
120 Basic Strategies in Comparison

caused by words that in spite of their identical spelling, and possibly even pronun-
ciation, have different meanings and is something that functionalism would like
to overcome.
Comparison between Western and Islamic inheritance law can also be taken as
an example: in both, the issue in the functional sense is the distribution (the same
legal problem) of the inheritance of a deceased close relative. In Western thinking,
this is permeated by human and basic rights, the difference in the inheritance case
between a man and woman per se is not (any more) recognised, whereas in Islamic
inheritance law the share of the female heir is half of the share of the male heir. In
Western law, estate distribution is regulated in the formal legal system but in Islam-
ic law the source is the Koran, the way of life ie Sunna prescribed as normative by
the Prophet Muhammad and Islamic legal literature (fiqh).29 The Koran determines
two-thirds of the estate distribution and so one-third of the estate is distributed on
the basis of other sources of law. So, the shares of the inheritance are defined on the
basis of family kinship in accordance with the ratios defined in the Koran.
In the West family connections are defined more narrowly, and the direct heir
(independent of the sex) is entitled to a certain lawful inheritance portion, which
cannot be denied, not even by a will. In short, functional models for the solution
of certain socio-legal problems (eg distribution of inheritance) are, in spite of their
distinct differences, operationally parallel because they regulate property that be-
comes available when a relative dies either as inherited in accordance with the law
or—at least partly—bequeathed by a will. According to functional comparative law
those different arrangements administer—in spite of legal-cultural differences—
the same socio-legal function. Crucially, that kind of functional equivalence is why
different arrangements are comparable in the sense of the functional comparative
approach.
Functions cannot be seen with a naked eye, which is why a conceptual
framework that is applicable to all systems studied has to be built in order
to reveal (or to construct) functions. The system’s own view of the func-
tion is just one opinion because the comparatist’s view (theoretically and
institutionally) is the view of an outsider. In most cases the comparatist has
to themselves build the conceptual-analytic framework by means of which
comparison can be carried out in a balanced way.
If one sees the world through the methodological point of view of func-
tional comparative law, then, legal language and its relation to the legal real-
ity becomes a problem. As Professor Hannu T Klami (1945–2002) stressed it
is crucial to understand that the conceptual counterpart is not necessarily the

29 Fiqh does not directly correspond to the Western view of jurisprudence or the doctrinal

study of law, but it is very close to them. It is a question of scholarly activity carried out by
jurist-theologians, a result of which legal literature that is based on analogies has been created.
It refers to Islamic rulings on the basis of sources of Islamic law (collective sources of Muslim
jurisprudence or general principles of Muslim jurisprudence usul al-fiqh). A classic introduc-
tion to Islamic law is Noel Coulson’s (1928–86) book A History of Islamic Law (Edinburgh,
Edinburgh University Press, 1964).
 Functional Comparative Law 121

real counterpart when it comes to legal norms and concepts.30 At its simplest
it is a question of scholars themselves building such a conceptual framework
through which they can examine all the systems in their comparison selec-
tively from the viewpoint of an outsider. The basic idea is to avoid putting
systems in different positions but, then again, there ought to be a desire to
treat all systems in the same way—including one’s own law, which must not
be given a legal-cultural or legal-theoretical preference (avoidance of bias).
The fundamental purpose in functional comparison is comprehensible
and easy to perceive: the purpose is, to the extent possible, to eliminate the
methodical problem and produce an analysed description of foreign (and
often simultaneously of one’s own, too) law from the viewpoint of an out-
sider. The picture is partially objective in the sense that it has been expressly
informed, and the study approach is the same (or it should be the same)
in connection with every system. It is a question of a different objectivity
from that of natural sciences; more fittingly we can talk about the candour
of study and the obligation of the scholar to present the facts that have
influenced the study as honestly, openly and exactly as possible. We can talk
about a special research technique called epoche.
Instead of the objectivity of the natural sciences we can aim at something that
in social sciences is called epoche (or bracketing). In connection to the research
process, epoche refers to the action of the comparatist where they consciously
bring up (and explain in detail) their study-related beliefs, hypotheses/expecta-
tions and theories concerning the legal systems studied. When this has been done,
they should attempt to bracket ideas. In an ideal case this would mean excluding
one’s own ideas for the duration of the research.
However, in fact it is a question of certain methodological fiction because even in
this way comparison will not in a scientific sense be completely objective (total
freedom from legal-cultural suppositions). Notwithstanding, the comparatist can
act like this—and being conscious of their own biases—at least attempt to ap-
proach foreign law as being as devoid of prejudice as possible. Identification of
personal bias is especially an exercise for the comparatist in order to minimise
pre-research bias or at least to become aware of the existence of bias.
For example, for a Western comparatist studying Islamic law or the cus-
tomary law of indigenous peoples such an operation in awareness is defi-
nitely a useful part of a study process that aims at being sincere. It is not a
question of the comparatist having to dismiss their own advanced ideas but
that the comparatist would become aware of their potential effect on the
study project and particularly on the conceptual frame built for compari-
son. To simplify a great deal, the comparatist ought first to identify what
they expect to discover and then deliberately put aside these expectations

30 HT Klami, ‘Comparative Law and Legal Concepts’ in Oikeustiede-Jurisprudentia

(Helsinki, Suomalainen Lakimiesyhdistys, 1981) 1–97.

122 Basic Strategies in Comparison

about foreign law. Unfortunately for comparatists, this is much easier said
than done.
Max Rheinstein used to give advice on this matter which although immensely
difficult to apply is apparently simple in nature: ‘Try to forget that you have ever
studied law. Never approach a problem in the way in which you would approach it
at home’.31 Rheinstein gave this piece of bracketing-methodology advice to young
European jurists who had arrived in the United States—knowing only too well
that the advice was anything but easy to follow: forget (for a while) who you are
and what you have learned, that should suffice! Although Rheinstein did not use
ethnographic vocabulary, his point was that of an epoche-approach: only when
the comparatist puts aside their own ideas about the foreign law, does it become
viable to grasp the legal-cultural experience from the eyes of the domestic lawyer
who actually ‘lives’ the foreign law (internal view). Yet, the comparatist merely
reconstructs foreign law from the basis of sources and their own understanding.

B. Getting Rid of System-specific Labels

Beyond dispute, from the point of view of the comparatist, the advantage
of the functional approach is getting rid of misleading labels. Functional
comparison is not meaningless even if in the legal systems compared the
societal conditions (which form a more extensive context to law) are dif-
ferent to a considerable extent, as far as the comparatist manages to find
functional equivalents. In general, suitability for comparison is the crucial
and simultaneously most difficult issue in any comparative study—one has
to be able to justifiably specify in what particular manner the objects com-
pared are comparable, ie what qualities (things as such are not compared,
but the qualities of things) can be compared sensibly. When the comparatist
has managed to construct the research frame to the extent that it is pos-
sible to carry out comparison, they still have to sort out the differences and
similarities in how the study topic has been legally (in its wide sense, ie
normatively) organised in the systems under study.
Occasionally, labels can be not only misleading but also downright
incomprehensible unless they are set in the context of their own legal
culture. Areios Pagos, the Supreme Court of Greece, is a good example of
terminology that is difficult to interpret.
The court is also known internationally by the name Areios Pagos (the spelling dif-
fers a bit from language to language). As the term describing an institution of a for-
eign law Areios Pagos as such is meaningless—its direct translation does not convey
any legal information. The name refers to one of the hills in Athens: Areios Pagos or
the hill of Ares (DZȡİȚȠȢ ȆȐȖȠȢ). Ares was the God of War (the Romans’ Mars), one
among the Olympian Gods in Greek Antiquity. In Greek Antiquity, murder charges
and other serious crimes were judged in a place that was called the Hill of Ares.

31 M Rheinstein, ‘Comparative Law—Its Function, Methods and Usages’ (1968) 22

Arkansas Law Review 415, 421.

 Functional Comparative Law 123

The name of the court has its background in the myths but it is not in respect of the
ancient God of War but of trials of ancient Athens. The name could be characterised
as a tradition-conscious bow towards the developed civilisation of Greek Antiquity.
Among the several courts of Athens in the classical period, Areios Pagos of Antiquity
was the one which was most respected. As a modern judicial organ Areios Pagos
is an appellate court or the Court of Cassation: it only handles legal problems, not
issues of evidence. In this, Greece follows the example of France where the Supreme
court (Cour de cassation) supervises the way in which lower courts observe legal
rules and principles in their case law. So, this takes place in a situation in which a
certain combination of facts is regularly repeated in a case where there is no writ-
ten provision that could be directly applied or where it is subject to interpretation.
The French term cassation can be derived from the verb casser, ie the court cancels
the decision of the lower court if, and only if, it considers that the lower court (1)
did not follow the right juridical process or (2) that is misinterpreted the law. So, in
Areios Pagos ancient Hellas and France of a much later date meet and fuse together.
It is also necessary to emphasise that the functional framework enables
the study of both differences and similarities. Critique has maintained that
functionalism seeks only similarities, but this is not the case, ie the func-
tional approach does not include any assumptions of similarity even though
some influential scholars (eg Zweigert and Kötz) have thought so. Yet,
occasionally, functional comparatists have concentrated on emphasising
solely the similarities of the systems compared. In such cases the question
is mostly of the knowledge-interest that serves harmonisation or unifica-
tion. The functional approach, as such, is equally applicable to the study
of both similarities and differences. The functional approach in itself does
not assume aiming at harmonisation or unification although in unification
projects it has been the frequent approach.
Here is the thing: the comparatist cannot decide in advance what their
study will reveal. Occasionally differences come up, while at other times
similarities will appear. If the scholar decides in advance that either one of
the dimensions will be emphasised, it is a question of a choice in research
policy. One of the leading modern theorists of comparison Örücü sums it
up fittingly: ‘What is wrong is to look only for similarities and overlook
differences or look only for differences and overlook similarities’.32 This is a
very good methodological rule of thumb for the contemporary comparatist.

C. Problems and Transformation of the Functional Approach

In the epistemological sense the functional comparatist is simultaneously

inside and outside of law: when the comparatist studies individual national
systems they are bound to the valid law and the existing internal ideas

32 E Örücü, The Enigma of Comparative Law: Variations on a Theme for the Twenty-First

Century (Leiden, Martinus Nijhoff, 2004) 213.

124 Basic Strategies in Comparison

(ie legal doctrine) about sources of law. This seems inevitably to lead to
some sort of legal conservatism. However, as an outsider the comparat-
ist examines different systems in a parallel setting in a study frame that is
independent of the systems themselves. This type of functionalism can be
described as legal problem functionalism that concentrates on the micro-
level of law and ignores the sizeable social structures—which are essential
for the different functional trends of sociology—to a great extent. As such,
problem functionalism is a heuristic rule of thumb that is characterised by
a downright lack of theoreticalness. As a counterbalance for the lack of
theoreticalness, functionalism is also a reasonably flexible methodical rule
of thumb that allows the scholar plenty of creativity.
Finding functional counterparts is possibly the most efficient approach
when the legal systems under study differ from each other significantly.
For example, in comparison between Finland and Sweden there would
probably hardly ever be any need to get started by finding functional
counterparts because the legal systems of the two countries are so similar
that decisions assumed in them and their positioning in the entity of the
legal system are likely to be very much alike. The problematicalness of the
functional approach is related to its difficulty, because it can sometimes be
very difficult to estimate which institutions carry out the same function in
different legal systems. Problems can go far deeper. How do we in the first
place know that all legal systems would have a number of specific universal
legal functions that must be performed? Indeed, is this kind of an assump-
tion simply too bold to hold water? When understood properly, the func-
tional approach does not assume such a stretched universalism. During the
research process, different assumptions can take turns and the comparatist
can end up changing the basic methodological assumptions first made.
Carrying out functional comparative law is made difficult by the far-
reaching specialisation of the different branches of legal fields, in which cases
the opportunities to look for functional counterparts are poor because the
scholar of administrative law knows administrative law and the scholar of
civil law knows civil law. In addition, one should have a readiness to acquire
knowledge from other branches of legal disciplines such as legal history,
legal sociology, legal anthropology and legal economics. Notwithstanding,
the functions of the legal systems dismiss the academic borders between
disciplines. This need not mean the requirement for mastering all fields of
law. Having said that, it means a readiness to cross the borders between
legal fields in knowledge acquisition. At present it is also important to per-
ceive the fact that a functional approach does not exclude other approaches.
Functionalism is certainly not the only method in comparison.
One of the very best comparative studies from the last few years, the extensive
work by Richard Hyland, Gifts—A Study in Comparative Law,33 shows that it

33 Richard Hyland, Gifts—A Study in Comparative Law (Oxford, Oxford University

Press, 2009).
 Functional Comparative Law 125

is possible for the old functionalistic school that is interested in legal rules and
the more recent comparative law that is influenced by anthropology to live side
by side. Although Hyland himself has a critical view of the functionalistic way of
performing comparative law, his massive work represents in fact such (modified)
functionalism that it can be considered functionalistic comparative law of the
twenty-first century. Yet, Hyland’s approach might also be described as a struc-
tural comparison (see section IX of this chapter).
The starting point for Hyland’s monograph is that for the past 2000 years
Western legal systems have been obliged to change the basic principles that
regulate the gift. By the gift Hyland means the transfer of property to someone
else for free so that the disposal is based on voluntariness, which means that
the property of the donor decreases while the property of the donee increases.
The work examines how the legal concepts of the gift have been changed to
correspond to the different social practices in England, France, Germany, Italy
and Spain. The work also contains extensive sections where the concept of
gift in anthropology, history, economics, philosophy and sociology is clarified.
The approach is versatile, simultaneously anthropological, doctrinal and partly
legal-historical.
It has been argued above that comparison which is labelled functional is
a rough methodological perception model for a study setting and noth-
ing else. Slavish and straightforward implementation of functionalism
involves serious risks. If the assumption of the functions of legal rules and
legal institutions becomes mechanical, law is in danger of being reduced
into utilitaristically defined functions, which are assumed to be identical
in all societies. That means that the cultural and symbolic dimensions of
law are left aside although it is well known that law often has significant
symbolic functions: a mere look at the architecture of the buildings housing
the Supreme Courts of States speaks for itself. The deeper layers of each
legal culture remain completely closed when mere facts are resorted to;
explanations can remain superficial if only comparison of solution models
for problems that are recognised to be formally legal is stressed. In sum,
the functional approach must not make one blind to the use of alternative
approaches like ethnographic or other sorts of qualitative or quantitative
methodologies.

D. Translating Legal Language and Functional Comparison

Legal translation is one of the most significant questions in comparative

law. In legal translations the aim is that the legal content of a document in
legal language (source-language) is correctly conveyed to the reader whose
native language (target-language) is not the language of the translation.
In practice, this presumes that the terms that represent legal concepts
are correct in the legal sense. Legal-linguistically the basic situation in
126 Basic Strategies in Comparison

translation is the same as in functional comparative law: to establish the

equivalence. In such a case the translator tries to find from the foreign sys-
tem the legal institution which to as great an extent as possible has exactly
the same role in a similar situational context.
It would seem that legal translation is relatively easily understood in functional
terms. This approach is usually well grounded because legal language homonymy
or other cases of the false friends syndrome in particular is deceptive. For exam-
ple, gift in French is contrat but in common law it is not contract because it lacks
the consideration element that it ought to have in common law; from the common
law viewpoint contractual reciprocity and contractual consideration are lacking.
In France a marriage is contrat but in Italy it is not contratto, and so on.
On a general level functional comparative law and legal translation can
be considered to be virtually the same thing. The differences are created
by the difference in the knowledge-interest. The comparatist compares the
solutions (functions) adopted in different systems for the same (or approxi-
mately similar) socio-legal problem and looks for differences and similari-
ties. Ultimately, they try to find an answer to why there are similarities and
differences by searching for answers in history, economy, politics, culture
and, for example, geography. The translator tries to translate foreign law
legally correctly. In both, the question is ultimately the same thing, ie a
serious attempt to understand foreign law by edging with subtlety under
the surface of legal language, which is a language for special purposes (ie a
language which is a formalised and codified variety of everyday language
and is used for legal purposes).
While for the translator the foreign legal system and culture are the context
for good-quality translation, knowledge of the language of the foreign legal
system is the prerequisite for the good-quality study of foreign law. Apart
from legal history, the linguistic dimensions have a very special significance
for a comparatist who tries to cross not only the borders between States and
cultures but also the borders between legal languages. The significance of the
language causes problems for the comparatist, but also within systems, the
changes in the language used are of great legal cultural significance.
When the language of the legal culture changes in its surroundings, also the sys-
tem’s own legal language is under pressure. For example, in the USA in Louisiana
the language of law and legal study that originally was French has got into difficul-
ties because with the weakening of the position of the French language the ability
of Louisiana lawyers to even understand and make use of Roman law has deterio-
rated dramatically. Another example is Cyprus where the common law that dates
back to the British period has to be transformed into the legal language of Greece.
At present the system in Cyprus is based on the written Constitution but since Great-
Britain governed Cyprus up until 1960, the common law is also in force. English
does not have an official status as a legal language, but up to the present it has had
a strong unofficial legal cultural status. Partly the influences assumed of Greek law
in Cyprus differ from the law in Greece because in parts the impact of the Orthodox
 Structural Dimension 127

Church is more clearly seen in the Cypriot system. Even the legal language of the
country seems to be in the melting pot; it vacillates between English and Greek.
There are numerous examples: legal Italian is in the sense of the scholarly study
of law a sort of ‘Italian legal German’, which still today reflects the impact of the
German doctrine that originated at the end of the nineteenth century. By means
of standard Italian, legal Italian is hard to understand: the influence of German
Pandektenrecht transformed into Italian Pandettistic, which can still be seen in
the Italian legal process and legal education. This is no wonder, since key schol-
ars who founded Italian private law in the 1800s were very influential Romanis-
tic scholars (eg Filippo Serafini 1831–97), and had been trained in Germany by
Pandectists.
Now, there may be differences between legal linguistics and comparative
law. In legal translation the principle of functionality is not treated with
critical postmodern opposition as easily as in comparative law for the sim-
ple reason that when translating there is no need to make such far-reaching
decisions about the similarity of legal systems as older mainstream func-
tional comparative law is accused of doing. In general, the translator need
not start to explain in detail at the general (legal) level what is the reason
for their choice of particular functional equivalents in the translation: the
focus is solely on the translation of the text.
On the other hand, if it is a question of a comparative legal linguist, the
translator hardly succeeds unless they know the legal and legal-historical
contexts of legal languages. Legal linguistics and comparative law are
inevitably allies in cases where a serious attempt is made to understand the
legal messages contained in a foreign legal language in a competent way.
To conclude, legal languages and cultures are intermingled, just as different
fields of study are relevant for comparatists.

IX. STRUCTURAL DIMENSION

A. Structural Elements

In structural comparison similar structural elements are searched for (or

occasionally attempts are made to explain why there are none). When
structurally similar elements are found, they are examined in order to be
able to explain what socio-legal functions they have in the legal systems
studied or how they were born and acquired their present form. It is a ques-
tion of examining legal architecture, which is outlined by legal historian
Bernhard Stolte as follows: ‘the modern codes of private law have been built
with the same bricks, although, of course, under different architecture’.34

34 B Stolte, ‘Is Byzantine Law Roman Law?’ (2003) 2 Acta Byzantina Fennica 111, 122.
128 Basic Strategies in Comparison

Stolte speaks of Continental codifications and how the end-results of the

codifications differed from each other in spite of the same Roman struc-
tural components (norms, principles, institutions, doctrines etc). Within the
context of a different architectural view and legal culture, different codifica-
tions were created. Everyone who has played with Lego bricks realises what
this is all about: the same law-parts can fit together in a myriad of ways
resulting in various legal-cultural kaleidoscopic views.
Structural comparison can be seen as a specialised application of func-
tional comparison. In structural comparison it is possible to investigate, for
example, how legal systems are divided into different fields of law whose
similarity or difference is under study. On the micro-level, the comparatist
can try to explain why, say, and how in England a trust or a case where one
person (a settlor) gives assets to another person (a trustee) to keep safe or
to manage on behalf of another person that enables a kind of double own-
ership differs from the Continental European law, where similar functions
are handled in a different way. English law regards a trust as an arrange-
ment where one or more trustees are made responsible for holding assets.
The assets, which can be, for example, buildings, land, money or shares or
even antiques, are placed in a trust for the benefit of one or more ‘benefi-
ciaries’. According to William Maitland (1850–1906), the trust was ‘the
greatest and most distinctive achievement performed by Englishmen in the
field of jurisprudence’. And, it was a legal institution of ‘great elasticity and
generality’.35 However, there are no actual civil law equivalents and such
institutions as the Roman fideicommissum or the German Treuhand cannot
be genuinely equated with common law’s trust.
Rather few comparative law studies, however, identify themselves as concentrat-
ing in particular on the structures of the legal systems. One exception is the work
of Birke Häcker titled as Consequences of Impaired Consent Transfers, which in
particular aims at being a structural study where English and German law are
compared.36 Häcker examines the competence to transfer movable property on
the basis of consent and situations where it is declined. She reflects on contractual
principles and regulations, laws of property and restoration of unfounded ad-
vantage. Comparison covers the rules and principles governing impaired consent
transfers of movable property.
In structural comparative law it is possible to operate for example with
such concepts as the basic model of regulation where criminal law sys-
tems may be described as punitive or restorative. Or, the classifications
of constitutions that have been created by means of comparison are an
example of basic regulation models that have been found by comparison.

35 W Maitland, Selected Historical Essays HD Hazeltine, G Lapsley and PH Winfield (eds)

(Cambridge, Cambridge University Press, 1936) 129.

36 B Häcker, Consequences of Impaired Consent Transfers A Structural Comparison of

English and German Law (Oxford, Hart Publishing, 2013).

 Structural Dimension 129

The purpose of such classifications is to offer knowledge of the structure

and field of constitutions. As a result of comparison among others the
following classifications of constitution have been recognised: written/
unwritten; coherent/dispersed; rigid/flexible; monarchic/republican; and
federal/unitary. In reality, it is a question of basic alternatives that concern
the constitutional regulation model and which only seldom materialise as
such in the living legal systems. The basic models mentioned, however,
offer a conceptual framework by means of which it is easier for the com-
paratist to approach the constitutions and constitutional laws that are
part of foreign legal structures. In this respect, the results of structural
comparison have to a great extent the same function as the legal families
that have been constructed as a result of theoretical comparative law, ie
creation of general information and offering of a framework to facilitate
understanding to start with.
Owing to its theoretical knowledge-interest, structural comparative law
often has close contacts with general jurisprudence and the intellectual his-
tory of ideas in the sphere of which the methods to organise the legal mate-
rial in a specific structural way adopted in different legal systems are studied.
A classic example is the distinction between private law and public law,
which does not exist as such in the common law. However, the questions and
disputes on the theory of comparative law have occurred in the context of
the mutual comparability of systems that belong to different social systems
rather than within the disciplinary boundaries of general jurisprudence.

B. Structural Comparability

The dispute over the comparability of socialist and Western legal systems
formed a source of disagreement that lasted for decades and could not be
solved before the socialist systems that had rested on a planned economy,
centralised planning and single-party-system broke down. Socialist law
was, however, modified civil law spiced with Marxist-Leninist ideology and
a Soviet type of public law. Discussion has subsided but by no means ended;
focus has shifted towards the East. The commensurability of Asian and
Western ideas of law has caused discussion in relation to its political base
and human rights as well as the protection of private property, and also the
unfitness for comparison of Islamic and Western law.
According to one view that has been acclaimed, the historical revolution-
arity of the Eastern-European legal development in the 1990s turned the
ex-socialist legal sphere into a laboratory for comparative law. The study
of it was seen as vitally important—there was an opportunity to see how
institutions and legal borrowings adopted from foreign systems adjusted to
the receiving countries that in parts differed a great deal from the Western
system. The extension of the sphere of the EU Member States has added a
130 Basic Strategies in Comparison

new layer to the change in the Eastern-European legal culture by further

increasing uniform features (of the written law).
When Eastern Europe was transformed from having socialist law closer to hav-
ing Western law use was made of several transplants and Western models. This,
however, did not mean a quick turning point in the earlier legal culture because
in Eastern Europe the doctrinal study of law is still national and tinged by legal
positivism. The status of comparative law in the former socialist countries is not
to be applauded, although for the EU Member States the situation has changed
in the respect that by means of comparative law, it has become possible to make
EU law easier to understand. Notwithstanding, Poland can be mentioned as an
example of a State where in the twenty-first century the role of comparative law
and the status of foreign law in teaching have more clearly detached themselves
from legal positivism and nation-State thinking.
On the other hand, Bulgaria is an example of a State where there have been prob-
lems with corruption and organised crime more clearly than in other EU countries,
and Bulgaria has not progressed in its development towards a Rechtsstaat as well
as had been expected. Partly it is a question of the difficulty of removing the bad
practices that over the past decades have been formed in the legal culture: they will
not disappear just by renewing legislation and adopting legal borrowings and EU
law from other countries and from the EU. The problem, and of course not only
for Bulgaria, has been the role of informal practices (unofficial normativities).37
Generally speaking, it is a question of legal reality and legal culture, not only
black-letter rules. Similar discussion is taking place, for example, in connection
with Chinese legal culture and Western legal loans and transfers. In this sense the
old comparability discussion has not died a death but it has, instead, transformed
into its present reborn form.
Structural comparative law also includes studies where there are spe-
cial contexts that are legal-culturally important and remain outside of
the actual fields of law, such as, for example, the position of precedents
among sources of law in different legal systems. In such cases comparative
study comes very close to legal theory as for example in the seminal work
Interpreting Precedents from the late-1990s.38 In the book it is proved by
means of comparative study that it is not a question of a black and white
dichotomy—precedents are binding versus precedents are not binding. It is
a question of a continuum where validity is given different weight in dif-
ferent legal cultures. By means of study, precedents can be placed in their
constituent legal and legal-cultural contexts.
The structural dimensions of legal systems can sometimes have a great
significance on comparative study. The same legal institutions can in their

37 See eg M Kurkchiyan and DJ Galligan (eds), Law and Informal Practices: The Post-

Communist Experience (New York, Oxford University Press, 2003).

38 N MacCormick and RS Summers (eds), Interpreting Precedents—A Comparative Study

(Dartmouth, Ashgate, 1997).

 Structural Dimension 131

own systems be attached to particular socio-legal contexts in which the

comparatist coming from another legal culture finds it difficult to fully per-
ceive. This includes also the changes in positive law over time, as a result of
which legal institutions can change contexts in their own legal cultures. For
a comparatist this change is always a challenge, for it can result in a mis-
conception about the fundamental difference of the foreign law although it
might simply be just differences of degree or a lack of syncretisation in the
legal-historical progress (roughly the same phenomenon in different times).
As an example we can mention such a basic private law institution as marriage. For
most of the history of Europe, marriage has been an economic contract between two
families or extended families (ie including kin) by means of which it was possible to
arrange the marriage between these families: love or devotion or any other affection-
ate opinion of those about to be married was not taken into consideration in the
contract. Through the influence of the Christian church, marriage became in modern
times the kind of sacrament we have today: it is based on affection and in the theo-
logical sense reflecting the relation of the human being to Christian God. At present,
the starting point in Islamic law is that marriage is not a sacrament and is not related
to attachment: it is a question of a contract (between the families of the bride and
groom) that includes such basic elements of contract law as proposal and acceptance.
The Islamic contract marriage of this kind can also include conditions, one of
which is the condition of the temporary nature of the marriage. One of the factual
functions of the mut’a (contract) marriage that is recognised by Shia Muslims
can be evasion of the banning of a sexual relationship outside marriage, in other
words it can denote prostitution. (The purpose of the mut’a marriage seems to be
making temporary sexual intercourse possible in accordance with Islamic rules.)
From the point of comparative law, it is important to see that in such cases the
institution called marriage is connected to different sections of the legal systems
of the Western and Islamic systems. To make it functionally simple: if a normal
permanent marriage (nikah) is of its legal nature a deal based on a contract (as
social and legal institution), mut’a is hire based on a contract.39 In the Western
legal culture, however, marriage, deal and hire are connected by the fact that they
in their own systems are legal acts having significant economic repercussions.
All this may sound as bit exotic to the Western comparatist but as a matter of
fact situation it is much more nuanced than what appears on the surface.40 There
are internal hybridities. Jan Michiel Otto describes the hybdrity of Islamic law
fittingly: ‘Throughout history and throughout the Muslim world, sharia has been
shaped and reshaped, influenced by local customs, reconstructed by colonial law,
and more recently by national legislatures, administrators, courts and interna-
tional treaties’.41

39 For a more detailed discussion, see S Haeri, Law of Desire: Temporary Marriage in Shi’i

Iran (Syracuse, Syracuse University Press, 1989).

40 See AA An-Náim (ed), Islamic Family Law in A Changing World: A Global Resource

Book (London, ZedBooks, 2002) providing a view of different interpretations, customary

practices and State policies concerning Islamic family law.
41 JM Otto, Sharia and National Law in Muslim Countries (Leiden, Leiden University Press,

2008) 6.
132 Basic Strategies in Comparison

C. Dynamic Approach

The best-known study approach that is placed somewhere in between func-

tional and structural comparison was born in Italy where owing to tradition
the practice of comparative law in its different forms at universities is con-
siderably more extensive than in many other civil law countries. There is
a so-called dynamic approach, which is related to the functional-structural
comparative law. The main developer of the approach, Professor Rodolfo
Sacco (b 1923), has paid attention to the fact that when the similarity or
divergence of the law in different systems is studied, in some issues several
sources of various types should be consulted.
It is a question of legal-cultural rules that define how law is created, used
and studied in that particular system. It is a question of the legal-cultural
reasons and theoretical constructions that concern the creation and use of
law. Sacco and his followers described this entity with the term ‘legal forma-
tions’, or in Italian formanti giuridici. In the English literature on the field it
has been translated as legal formant. It is a question of a more extensive and
contextualised interpretation of a legal-culturally extended source of law or
institution. Legal formants are basically legal propositions (eg doctrine on
sources of law) that have an effect on the solutions of legal problems: they
are not rules but more like definitions stating principles which are used while
constructing judicial/legal decisions. So, formant is not a singular thing but
instead refers to the plurality of legal elements combined.
According to Sacco (and Antonio Gambaro), the central function of comparative
law is to discover the legal-cultural formations that prevail in each system and that
are not confined to formal law because different implicit principles, practices and
methods that are not expressed in writing should be taken into consideration in
comparison. The situation is like this because in spite of quite similar legal texts,
in some cases the interpretation of law is different in different systems. In addi-
tion, it is worth noting that even within the same legal family it is possible that a
different view has been taken in the same case in different countries. Also in the
same country, disharmony might prevail about some matter between the different
legal formants, which is demonstrated by the differentiated source of law doc-
trines in different fields of law.
Sacco has classified three basic types of the legal formant, which are the legislative
formant (formante legislativo), jurisprudential formant (formante giurispruden-
ziale) and doctrinal formant (formante dottrinale). Sacco’s theory is acclaimed
worldwide, in particular owing to his article Legal Formants: A Dynamic Ap-
proach to Comparative Law, which was published in 1991 by the American Jour-
nal of Comparative Law.
It should be made clear that the study of legal structures is not connected to
the social science structuralism that is known in anthropology and sociol-
ogy. In the background of that kind of structuralism there is a common idea
according to which society consists of different symbolic systems. Among the
ideas of actual social scientific structuralism is the studying of the effects of
 Systemic Approach 133

structures on the behaviour of people as part of their communities. That type

of structural analysis is also based on the observation of relations formed by
symbols. It is possible to practise comparative law, too, with such structuralist
emphases, but in most cases a slightly less ‘saturated’ study of legal structures
is used. The study of legal formants is apparently the kind of structuralist
comparative law that has been developed the furthest in the scholarly sense.
However, the ‘legal formants’ approach has not gained such great popularity
among comparatists as have various versions of functionalism. Moreover, the
dynamic approach and functionalism seem to partially overlap.

X. SYSTEMIC APPROACH

In systemic comparison a specific legal institution or structural part that

belongs to a legal system is ‘separated’ from its national context and placed
side by side with solutions on the same socio-legal problem by the other
legal systems compared. The objects for the comparison are picked from
different legal systems and set in the theoretical context (comparative
framework) constructed by the comparatist. An example of this approach
is provided by Maartje de Visser, who concentrates on the institution of
constitutional review in Europe: de Visser studies how constitutional review
is organised in the systems of 11 EU Member States.42 If the object selected
for comparison is included in the scholar’s own legal system, it becomes
possible by means of system comparison to observe one’s own national
solution as if from outside: how do the arrangements in one’s own law
relate to the corresponding laws of other systems?
In systemic comparison—as in comparison in general—the comparatist
is the one who has to construct the conceptual framework or the theo-
retical model by means of which comparison is performed. The criteria for
the comparison do not emerge from the study objects on their own. The
scholar’s own knowledge-interest is in a significant position, which is why
the nature of systemic comparison in most cases is theoretical comparison
where the aim is to increase the amount of knowledge. In spite of this it is
possible to utilise knowledge obtained by means of systemic comparison
that has practical aims.
The Achilles’ heel of systemic comparison is its conscious attempt to
remain methodologically detached (external point of view) from those legal
systems from where the legal solutions that are compared come. On the one
hand, this approach enables knowledge formation that is detached from
national legal systems and thus serves the theoretical aims of comparative

42 See M de Visser, Constitutional Review in Europe—A Comparative Analysis (Oxford,

Hart Publishing, 2014).

134 Basic Strategies in Comparison

law. On the other hand, when we withdraw from concrete legal systems and
abstract socio-legal solutions adopted in them for our study, several epis-
temic problems appear. The most central of these problems concerns the fact
that the comparatist can misinterpret a foreign model if they do not consider
foreign law in its the entirety, ie the total amount of things considered legal
from the point of view of a national lawyer. The problem can to some extent
be avoided if functional equivalents are searched for when selecting objects
for comparison. Having said that, it is sometimes very difficult to tell apart
systemic comparison from structural comparison, a part of which it can also
be. A system can be seen as operational (dynamic) while structures are not
operational (static) in the first place.
An example of systemic macro-comparison is comparative criminal law
where it is possible to distinguish three different Western criminal pro-
cedure regimes (or control regimes), which are the common law regime,
Romano-Germanic regime and Nordic regime. These are of course com-
parative generalisations by means of which generalisations in reasonably
analytical form can be presented:
1. Common law is based on legal principles, which were born in legal
practice at the turn of the eighteenth and nineteenth centuries and
with which the opportunities of the prosecutor and defence counsel
to act in a criminal case were limited. Compared to other regimes, the
common law judges are rather passive up to the point when judgment
is pronounced. The common law regime has been built on the notion
that from the beginning of the process there would be laymen (jury)
involved, and due to this, different complicated rules were introduced
to compensate for the laymen’s lack of legal knowledge. The punish-
ment is specifically a punishment for a crime.
2. In the Roman-Germanic or civil law model the legal practices have
their roots in academic doctrine and law is approached scientifically,
which means that judges are regarded as highly educated jurists. The
considerably extensive authorities of the academically educated pro-
fessionals diminish the freedom of action of the laymen and defence.
The end-result is the rather bureaucratic machinery of legal practice,
which operates on the terms of the legally educated and remains barely
comprehensible for the laymen. One key function of punishment is to
separate offenders from a society.
3. The Nordic model is a kind of hybrid between common law and the
Romano-Germanic law, but it is not so much a case of Nordic coun-
tries having been directly influenced by them but because it is based
on the Nordic legal culture. The Nordic legal culture is characterised
by its communal nature and social-political basic emphasis. One of the
basic principles of the system is to level off social inequality by means
of intervention by public authorities. While in particular both the
 Critical Study Approaches—Two Examples 135

Anglo-American common law and Romano-Germanic model attempt

to detach the offender from a society, the basic aim of the Nordic
model is to socialise the perpetrator from imprisonment back to a soci-
ety. (Yet, the model for this probably comes from Germany where the
Reformation and the jurisprudence of the nineteenth century were influ-
ential.) In addition, judges are more layman-like than the Continental
European ones. From the point of view of the comparatist these
differences at the systemic level have concrete effects on comparison: for
example, the assessment of the action of judges is not based on exactly
the same criteria in, say, France, the United States and Sweden. The
legal-cultural contexts differ significantly at the system level although
each of these three regimes belongs to the cultural sphere of Western law.
In connection with details it is functionally difficult to draw a parallel43
between the regimes although in general and on the macro-level compa-
rability seems relevant especially if compared with non-Western models.

XI. CRITICAL STUDY APPROACHES—TWO EXAMPLES

The critical approach is even more multifaceted than the previous ones,
and it is not possible to define it with the specificity that would be equal to
the definition of the previous three basic dimensions of comparative study.
Usually there are two types of criticalness: (1) attitude to earlier compara-
tive law is critical and it is considered to concentrate too much on Western
private law similarities and practical goals; and (2) in the study approach
the aim is to include dimensions that are not descriptive to as great an
extent as the case has been in traditional comparative law. This can also be
described as method criticalness and content criticalness. This manner by
which to divide critical approaches is clearly not the only one; for instance
Siems uses a distinction between ‘law as discourse’ and ‘law as politics’.44
Now, the difference between Siems’ distinction and the one used here is not
significant because these critical forms of comparative law are both post-
modern and they ‘illustrate that there is considerable diversity in the way
comparative law can be approached’.

A. Deep Level Comparison and Mentality

Among the best known adherents of critical comparative law is

Professor Pierre Legrand who is one of the most controversial comparison

43 For more extensive comparative discussion, see RJ Terrill, World Criminal Justice

Systems: A Comparative Survey, 8th edn (New York, Routledge, 2014).

44 M Siems, Comparative Law (Cambridge, Cambridge University Press, 2014) 109–16.
136 Basic Strategies in Comparison

theorists of recent years. Some comparatists greatly adore his approach and
theories, while others—greater in number—are of the opinion that Legrand
greatly exaggerates. From the 1990s Legrand has become mainly known in
European jurisprudence for the fact that he opposes with sharp tones the
idea of the cultural unification of European law.45 Another central charac-
teristic is the emphasis on dissimilarity—Legrand’s core idea is to emphasise
differences in comparative study while traditionally the trend has been to
emphasise similarities. According to Legrand, comparative law is the study
of the fundamental differences of different systems where the methodologi-
cal guideline is precisely the difference.
Unlike for Continental European legal scholars in general, for Legrand
regulations and concepts are manifestations of the legal-cultural surface
level, which is something of less importance. They form a small part of the
mental programme that a certain legal culture or a legal system that belongs
to a specific legal culture all in all forms. He emphasises the significance
of the subsurface cultural structures of law of which the rules of law and
legal concepts reveal very little although they reflect the deep structure of
the law. This does not mean that the rules of law would not be valuable or
that they should not be given significance. It is rather a question of what
epistemic significance the rules of law and legal concepts are considered to
have in the comparative law study.
According to Legrand, the significance of a legal rule is never revealed
by just examining the rule itself, ie the rule does not ever explain itself. The
significance of a rule is the function of epistemic assumptions. Epistemic
assumptions again are culturally and historically defined factors. The
comparatist has to assume such an attitude to study the cultural, political,
anthropological, linguistic, psychological and economic background factors
instead of the significance of the surface level of the rule or concept. Thus
every single manifestation of law (eg legal rule, court decision, statute enacted
by a legislator) has to be seen as a complete social fact. Therefore, the most
central feature of a legal rule is not its nature as a normative directive but its
nature as a reflection of something that is more important and more essential
for the law itself.
Due to the emphasis on the significance of the deep level of law, Legrand
suggests that comparatists should investigate the cognitive structure of a
particular legal system and especially the epistemic grounds of that cognitive
structure, which he refers to by the name legal mentality. The examples with
which he concretises the matter deal with the differences between English
common law and Continental European (Roman law), which according to
Legrand are so significant that the representatives of these systems can never
completely understand one another. Therefore, the comparatist should settle

45 P Legrand, ‘European Legal Systems Are Not Converging’ (1996) 45 International and

Comparative Law Quarterly 45.

 Critical Study Approaches—Two Examples 137

for imagining with empathy and insight how it would feel to jump into the
shoes of a jurist in another system and to approach the same problem based
on the same legal-cultural way of thinking of the other (jurist).
Mentality usually refers to the mental disposition of an entire society or to a kind
of total attitude. From the point of view of comparative law it can often be a very
significant factor, as for example when the legal culture of Japan is assessed. The
system of the written law of Japan is quite Western, and on the basis of written
sources it is impossible to tell it apart from Western systems. On the other hand,
it seems that the role of formal law is less significant in Japan than elsewhere be-
cause many disputes are not taken to court but solved by negotiation and arbitra-
tion before they become lawsuits.
One example of Japanese legal mentality is that although courts have a formal
right to control the constitutionality of laws enacted by the organ of Parliament,
ie Kokkai (Japanese ), they avoid declaring laws unconstitutional. This is due
to the fact that according to the Japanese legal mentality, the court shall mani-
fest moderation and respect to Kokkai. In short, on the basis of positive law the
system appears American-style, but not in practice. The explanation is connected
to the legal culture and legal mentality: Western-borrowed rules and institutions
work differently in culturally different situations.
The ontology of law, ie in the respect in which it can be suitable for the
basis for comparative study, is according to critical comparative law a sym-
bolic medium by means of which communities try to understand themselves
better. According to Legrand, comparative study increases the understand-
ing other legal cultures have of themselves by illuminating that specific
cultural way in which they understand their own law. The core task of law
would be to function as one important method in the social psychological
identification of a community. Otherwise comparative law in his opinion
turns into a rather senseless undertaking with no noteworthy scholarly
significance or rationale.
In the European debate Legrand with his opinions has been in the extreme op-
position, if not downright marginal. This is mainly due to the fact that he is so
grimly opposed to, and continues to oppose, common codified European civil law.
In this resistance he has, it would seem, overreached. However, for comparative
law epistemology the core message of his critical comparative law is significant
and important—comparative law cannot settle for studying law as it is defined by
the national doctrinal study of law; instead, law has to be also seen in a different
cultural and philosophical context—where the subsurface assumptions of law (eg
understanding of time, space, legal reasoning and validity) are more important
than the surface level of regulation. John Bell comments on Legrand and notes
that the comparatist must ‘learn about the society and not just the legal system’,
but it does not make it (JH comparison) impossible because ‘otherness does not
result in incommensurability’.46

46 J Bell, ‘Legal Research and Comparative Law’ in M Van Hoecke (ed), Methodologies of

Legal Research (Oxford, Hart Publishing, 2011) 169.

138 Basic Strategies in Comparison

If this approach to comparison is evaluated in the light of how the same

legal problem is understood, the rule orientation of the traditional compar-
ative law is turned upside down, no more no less; we should not examine
rules, concepts, principles or even legal theories, but the implicit (cultural)
commitments that are at the background of these theories should be studied
instead. However, such critical comparative law does not offer any clear
methodological guiding principle, so in this respect it is in a weaker position
than the mainstream study.

B. Postcolonial Methodology—Orientalism

Another example of a critical study approach that is important from the

point of view of comparative law methodology is the critical and emancipa-
tory study that has crystallised around legal orientalism. Legal orientalism
refers to the generalising study of Asian law which embodies an implicit
colonialist attitude. Now, for example, because the study of Chinese law
and the global significance of China in general are growing, the study of
Chinese law has become a more and more popular sector in comparative
law and the study of foreign law. Legal orientalism and the discussion
related to it give a clear picture of the type of methodological problems
that may lie ahead. The concept of orientalism and the postcolonial discus-
sion connected to it was introduced in the theoretical and methodological
discussion of comparative law surprisingly late. In this regard comparative
law was not at the forefront, but lacked behind legal anthropology, ethnol-
ogy and history.
In an important article Legal Orientalism, Professor Teemu Ruskola
introduced orientalism into the comparative law discussion and combined
it in an interesting way with the postcolonial theory.47 The theoretical
framework of Ruskola’s article was connected to the school of thought that
we are accustomed to call postcolonial.
The postcolonial theory is a rough way to perceive a more extensive
research tradition. Generally, it refers to the process of decolonisation
and the period after that. In fact it is used in reference to several matters
although they do have clear uniting factors. Of course, time periods are the
most obvious factor: it is a question of the tradition of the critical emanci-
patory theory that followed the dismantling of the structures of colonial-
ism. Postcolonialism is quite closely related to the study of ethnicity and
racism as well as to the study of feminism and literature. The crux from the
point of view of comparative law is that Western legal concepts are no lon-
ger automatically accepted as the self-evident yardstick for different (read:

47 T Ruskola, ‘Legal Orientalism’ (2002) 101 Michigan Law Review 179. For a more recent

and theoretically refined version, see T Ruskola, Legal Orientalism: China, the United States,
and Modern Law (Cambridge MA, Harvard University Press, 2013).
 Critical Study Approaches—Two Examples 139

Asian) legal culture(s). Attempts are made to give the legal Other (written
with a capital O because of radical difference from Self) a voice of its own.
The target of Ruskola’s argumentation was the culture-bound view that was based
on cultural history and according to which there has never been real law in China.
This is the basic epistemic theoretical starting point of Western legal sociologists,
legal historians and comparatists, which only crumbled surprisingly late. With the
real law Western comparatists meant either as directly defined or implicitly the
kind of law that in Max Weber’s (1864–1920) classical sociology of law is referred
to as legal rationalism. Often Western comparatists connect the concept of real
law with the liberal legal system in general and with such an idea of constitutional
State where the State delimits not only the competence of other actors but also
its own competence—it is a question of voluntary submission to the normative
power of law.
From the point of view of comparative law, the traditional description has the
epistemic structural fault that it in fact does not so much describe Chinese law
but produces a Western representation of the legal culture of China, which tells
more of the comparatist than of the law in China. This is due to the fact the
conceptual instruments offered by the traditional sociology of law are not really
applicable to the study of Chinese legal culture because the traditional Chinese
legal culture is not and has not been ‘rational’ in the Western sense. Crucially,
this does not mean that Chinese legal culture would be necessarily ‘irrational’—
much depends upon how rationality is conceived and defined.
Ruskola criticises the various opinions that Western scholars have had of
law in China and its significance in different historical periods. Western
analyses are characterised by stability, which seems to be inconsistent with
the history of China. The ideas of several Western scholars on Chinese
legal culture have stayed surprisingly similar although the social system
has changed drastically. Many of these stereotypes that epistemologically
disturb comparatists have not only been stable as to their content but also
their functions have remained surprisingly similar: they have reinforced the
idea of the qualitative superiority of the European-American civilisation in
relation to the Chinese one.
At present, Western ideas are used to justify the attempts to transform
China into a State that would fit into the global neoliberal economic system.
The opinions according to which there has never really been endogenously
proper law in China serve Western scholars well in the construction of their
own identity instead of contributing to understanding the otherness that
Chinese legal culture represents. According to the core of criticism, Western
legal scholars kind of educate and teach China what it means to be a State
where there is ‘proper’ law. According to the critical analysis of Ruskola, it
is the implicit legal-cultural premises of the Western comparatist’s own that
cause implicit bias; on the other hand, these premises depend unavoidably
on how the scholar in question understands or defines law. The problems
introduced by Ruskola emerge also when Western legal scholars want to
teach the Chinese (or other Asians) what proper law is like.
140 Basic Strategies in Comparison

Undoubtedly, China is difficult to perceive because at present it is as a

legal culture a kind of hybrid between the Western regulation models, the
traditional Chinese legal culture and socialist system. Explaining it as a
legal culture that is based on Confucianism simply ignores the tremendous
development in legislation that has taken place in China over the past 30
years. On the other hand, if China is evaluated solely on the basis of (trans-
planted) positive Western-style law, it is not possible to obtain a profound
grasp of the country’s legal culture; instead, one ends up describing written
positive law. And yet, it is not quite socialist either.
An example that well reflects the hybrid nature of law in China is the court system,
which is organised in the Western way but is not, however, politically independent.
For example, the Supreme People’s Court of China, ZuìgƗo Rénmín Fӽyuàn (Chi-
nese ) is responsible for its operation to the Congress and its Perma-
nent Committee. Judges are nominated for a term, which may increase the depen-
dence of judges on political decision-makers. However, law in Hong Kong, which
belongs to China, is to a large extent based on the English common law while in the
law of Macao, which also belongs to China, there is still a very strong Portuguese
influence on law and legal culture. For almost 500 years Portuguese law has been
the main reference which means that Macao is actually a bilingual (Portuguese
and Chinese) civil law system. According to the Chinese principle of ‘One country,
two systems’ the Macao Special Administrative Region of the People’s Republic of
China (Portuguese Região Administrativa Especial de Macau da República Popu-
lar da China) still maintains civil law as the legal-cultural foundation of its law.48

XII. DEPTH OF THE STUDY—DECISIVENESS

OF THE KNOWLEDGE-INTEREST

To complement what is said above, it is possible to perceive the method-

ological and theoretical dimensions of comparative law by starting from
what the scholar is interested in, ie what is the specific purpose of the
comparative study (why one compares). Such an eclectic approach results
in a kind of perception that complements earlier analyses and partly over-
laps with them. In this way a pluralistic view can be presented of modern
comparative law that has broken loose from the grip of (doctrinal) private
international law.
It is now possible to identify several legitimate stages of comparative law
research, as not one of them is right or wrong as such. It is significant that
the scholars themselves recognise their own knowledge-interest and appor-
tion their study not only to it but also to the resources available and their
(or each individual’s own) ability. In short: if the scholar does not know
Russian, naturally a profound study of Russian law or legal culture cannot

48 See I Castellucci, ‘Legal Hybridity in Hong Kong and Macau’ (2012) 57 McGill Law

Journal 665.
 Depth of the Study 141

be the aim. On the other hand, nothing prevents using, for example, English
translations if the scholar wants to make use of Russian law for some less
demanding purpose. However, one should not draw such an erroneous
conclusion that an excellent knowledge of the language would automati-
cally result in an excellent comparative study: command of language/s is
just one of the skills that is related to carrying out comparative research.
Legal-cultural literacy is more important than the technical mastery of a
language, ie methodological sensibility and sensitivity towards foreign legal
material is needed.
Activities that are carried out in connection with the drafting of legisla-
tion, when models for the development or criticism of one’s own law are
searched for, can be considered first stage comparison. This is not sys-
tematic comparison but action dictated by practical purpose and need. At
that stage it is only seldom possible to ponder the theoretical background
conditions of the study of foreign law to any great extent. An example of
the second stage comparison could be the harmonising study interest that
has over the past few decades gained great popularity in Europe; with it
the best or most economically efficient solution for a socio-legal problem
that occurs in several systems is looked for. The modern practical human
rights comparison often has such features in the operation of the European
Court for Human Rights. And in the EU Court comparison is in the same
way interested in solving problems and filling in gaps in law, just like in
a national court when foreign law is applied in a case that belongs to the
sphere of private international law. The EU Court uses practical compari-
son when interpreting EU law to ensure it is applied in the same way in all
Member States. The second stage comparison is more demanding than the
first stage one because there has to be an outside yardstick (eg economic
efficiency etc) that gives comparison a certain scale or common compara-
tive framework.
The third stage comparison can be regarded as comparison within a cer-
tain field of law where differences or similarities are looked for in a more
systematic way so that there is a conceptual reference frame that is not from
within the systems being studied. It is also characteristic of the third stage
comparison that there the knowledge-interest is often also normative and
virtually identical with the study interest of the doctrinal study of law. It is
fair to say that in practice it is difficult to tell apart the comparison of the
second stage and third stage, and often these interests are intermingled. It
is, finally, a question of what the comparatist emphasises.
The fourth stage comparison is already completely inside the knowledge-
interest of comparative legal study, and there the scholar looks for explana-
tions for differences and similarities so that the study in parts comes close to
the sociology of law, legal history and legal anthropology. As comparative
legal study, the fourth stage is described by the fact that the scholar no lon-
ger has a normative knowledge-interest nor are they any more epistemically
142 Basic Strategies in Comparison

committed to any specific national or international knowledge-interest. The

fifth stage comparative law is difficult to tell apart from the fourth stage
because often the fourth stage comparative law irrevocably results in fifth
stage problematisation, including the development of the theory and meth-
odology of comparative law. Also macro-comparison, ie classification of
legal cultures or legal families, typically belongs to the fifth stage compari-
son although also other comparative settings benefit from these findings
both in teaching and research (chapter nine, section IV).
The above-mentioned stages are simplified methodological blueprints,
and the list is by no means complete. Naturally it is possible that, for
example, a court applying foreign law would end up drafting a research-
level account of that law. On the other hand, a judgment is not a research
report. The above illustrative listing aims at demonstrating that there are
several different fields in comparison as well as many legitimate ways to
compare. What is at stake here? Ultimately it is a question of the fact that
the pluralism of modern law is accepted also in the methodology of com-
parative law. What is provided here is not a ready-made choose-and-use or
one-size-fits-all methodology; instead, the scholar has the final responsibility:
no methodology or method saves the study if comparison is not used to
serve the comparatist’s own starting goals. In short: superficial ritualistic
comparison could not be more useless. If the comparison serves no ratio-
nale, then why compare at all?
What is said above contains a useful common sense methodological idea.
It is quite likely that for every comparative study project an individual way
to approach has to be built. Accordingly, what is essential in comparative
law is that instead of hollow imitation of a specific method or approach,
foreign law is given fair treatment and the study is carried out as honestly
and accurately as possible.
If and when this kind of common sense attitude to the methodology of
comparative study is assumed, simultaneously the methodical-theoretical
straight-laced attitude is given up and it is accepted that no general all-
inclusive theory of comparison exists. Owing to a lack of a one-size-fits-all
method, the comparatist is personally accountable for the method(s) used.
Reporting of research results should be comprehensible and open: the
reader ought to be able to grasp what is said and on what grounds. Another
point of view that in this connection ought to be abandoned is the disci-
plinary independence of comparative study as a field of legal study, which
esteemed theorists in the twentieth century emphasised; in the conditions
of the present-day disruption of the nation-State, it is no more the relevant
intrinsic value that it earlier was considered to be.
This would mean that the attitude to the comparative study method
ought not to be seen as a separate theory or approach but as a principle
related to all jurisprudential study. And, if we think in this way, then the
most important and possibly the only actual tool for study is an open
 Research Ethics 143

and inquisitive mind. What is significant is the degree of seriousness and

compassion with which comparison is performed and how thoroughly
the conclusions are argued: foreign legal documents and practices have
no way of speaking for themselves for those who look from the outsider’s
epistemic point of view. It is the comparatist’s task to make foreign mate-
rial ‘speak’: first to the comparatist themselves and then to those who read
the published outcome of the research. Finally, it also remains a task for
the comparatist to speak on behalf of all the compared systems within the
framework of the research performed.

XIII. RESEARCH ETHICS

It is not possible to define research ethics conclusively but it refers to the

practices that belong to the research process and which are approved of in
the scholarly community. It is a question of the internal control within the
scientific community that includes research-ethical principles. Those prin-
ciples are the guidelines also for comparative study and they have one main
purpose: they are to prevent in advance so-called bad scholarly behaviour
and enhance good research practices.
Several ethical points of view are included in the stages of the research
process in comparative law. As it presumably is not possible to perform
such a study under laboratory conditions, occasions involving ethical prob-
lems are not downright clear. In its most common form, research ethics
means using the methods and practices accepted by the working community
of legal scholars for planning and performing the comparative study and
reporting on it at a later stage. In the investigation of foreign law carried
out in the context of private international law, these practices are not truly
required because an internal view and normativity bound to judicial func-
tion (what law should be applied to the case at hand?) are not comparable
to research.
If the comparatist investigates factors that are culturally sensitive, as
can be the case in the study of the law in other cultural spheres, they must
also consider the ethical decisions more thoroughly. For example, when
interviewing individuals or hearing informants, attention has to be paid to
whether hearing them has an impact on their position as part of their own
communities. In the same way it can often be well grounded in individual
cases to use other neutral expressions (eg the accused, plaintiff, person A,
person B etc) instead of personal names.
If in the study of foreign law material containing personal data is col-
lected or if a topic is politically, culturally or religiously sensitive, the
comparatist should be on the alert. The same applies to potential practical
assignments in connection with which it is advisable to think what kind of
knowledge needs one wants to fulfil and what kind of aims one wants to
144 Basic Strategies in Comparison

promote with one’s comparative knowledge. A classic example is a well-

paid expert assignment abroad offered by a government with a notorious
reputation: from the point of view of the research ethics of comparative
law, which emphasises universalism, accepting an assignment like this in
an expert’s role seems (when observed from outside) to be coarse scholarly
behaviour indeed.

A. Honesty in Research

Research-ethically there are at least two central issues in comparative law:

the control of the tension that is due to cultural differences and the honesty
in carrying out research. In the first-mentioned case it is a question of the
tension that is created between (unknowingly) defending one’s own legal-
cultural Anschauung and the respect for the foreign legal cultures. The com-
paratist ought to find a balance between their own legal values (eg respect
for human rights, democracy, the rule of law) and the cultural respect they
have towards the foreign legal culture. To be sure, there is no need to reject
one’s own values but it is worthwhile to make them known to oneself and
to the readers (cf epoche approach).
Secondly, in the tension mentioned the question is of the fact that the
comparatist bases their arguments on the research made and truly on the
sources that have been available (and are specifically referred to). The pur-
pose is to avoid a situation where the aim of the comparatist’s work is only
to strengthen the opinion that they already held before comparison. Ideally,
the comparatist should be open to acquiring new knowledge and have a
relaxed attitude towards the crumbling of their own advance hypotheses.
So, it is not acceptable to cook up a story of one’s own and to patch it with
sources that support the cook-up, if other sources do not support the story.
Overall balance is probably not fully attainable but as a goal it certainly has
a legitimate place in comparative methodology.
A certain epistemic and cultural veneration for foreign law is among
the fundamental ethical starting points of modern comparative law. It is a
question of the attitude to research of foreign legal cultures. The purpose is
not to praise foreign law blindly or to reprimand it as deranged. The aim
is to become aware of one’s own strong epistemic and cultural prejudices.
This does not so much influence the conclusions of the comparatist; it is
acceptable to call something bad if it is bad or good if it is good, on the
condition that there are grounds and criteria for doing so. If the socio-legal
solution studied in foreign legal culture is contrary to human rights, it can
of course be brought up—there is no place for affectation (legal xenophilia,
ie an affection for foreign law/legal culture) if justified criticism is called for.
Ultimately, it is a question of methodological sensitivity in the study of
foreign law and legal culture without upholding the belief of the automatic
 Comparative Methodology—Heuristics? 145

superiority or inferiority of one’s own law. Of essence, here, is which mea-

suring tool is used: does it favour a certain system? In short, the comparatist
should not take sides before actual research has taken place. Comparative
study may weaken or strengthen the beliefs or stereotypes that the com-
paratist has; however, what happens ought to happen on the basis of actual
comparison and not on the basis of prior beliefs or stereotypes.
Among the typical ethical problems in comparative study there is an
unbearable phenomenon that occasionally appears and which could be
called intentional cover-up. Here the question is that the comparatist should
openly report to the readers the sources that are in a foreign language and
to other domestic scholars the sources that are difficult to understand/or
obtain. If thoughts and ideas that the comparatist presents as their own are
in fact those of foreign scholars, the comparatist clearly breaks the study
ethics.
The achievements of the legal scholars from foreign legal cultures must
be taken into consideration in a proper way and to refer to them properly
and with sufficient exactness even though one’s own readers would not be
able to understand them owing to the language used. This is, perhaps, the
most attractive form of plagiarism when the scholar has an opportunity
to make use of material in rare languages. Knowledge of rare languages
is a strength factor for an honest comparatist, not something that tempts
the comparatist to turn into a scholarly pickpocket hiding under linguistic
clothing.

XIV. COMPARATIVE METHODOLOGY—HEURISTICS?

In this chapter a variety of methodological basic choices that have to be

made before and during the comparative study were introduced. At the
same time it has become obvious that the methodological toolbox for
comparison does not form an exact methodology but contains instead a
number of useful rules of thumb. Owing to the plenitude of legal cultures
and the interests of the comparative scholars, the theory and methodology
of comparative law is for the most part heuristic in nature. The exactness
of natural sciences is only partly realised in comparison.
Heuristics is related to the study process because it is an approximate
method by means of which it is usually possible to get sufficiently close
to a good end-result. Owing to its basic nature, a heuristic method is not
exact. Among typical heuristics are rules of thumb or educated academic
guesses both of which are based on limited but sufficiently large amounts of
knowledge. Applied to the study process, it is a question of the comparatist
not having to think with one’s own method about everything from the start.
Heuristics does not offer ready-made or one-size-fits-all solution models of
how comparative study can be constructed. It is a question of a kind of art
146 Basic Strategies in Comparison

of discovery, which is based on the Greek word for ‘I found’ or ‘I exposed’,

ie hevrísko (İȪȡȓıțȦ).
The methodology of comparative law can owing to its nature be defined as a
heuristic compilation of rules of thumb on exposure and discovery in comparative
law. Here it is fitting to quote the words of Finnish legal philosopher Otto Brusiin
(1906–73):
The methodological general lines that the comparatist outlines when beginning
the process are just clarifying work hypotheses that they over the process fre-
quently have to check. But in case they have no conscious guidelines to start with,
comparative law easily becomes a confused collection of separate details.49
In other words, the comparatist has to have some guidelines with regard to what
they are doing and why. A general idea of the comparative process helps to carry
the study through, and here comparative heuristic methodology has a natural
place and role.
Although the choices discussed above are rather concrete in nature, what is
lacking is the fact that hardly anything concrete in the interrelation between
the choices and process of comparison has been mentioned. The same
shortage applies to almost all literature on comparative law: demands pile
up but concrete examples of how to actually go about comparison do not.
It is rare to see practical and organised descriptions that are presented in an
explicit form on the different phases of the comparative law study process
and the issues related to the different phases. The comparatist however is
not completely lost, not even at the early stages of their career. It is possible
to use studies completed earlier for model learning, ie experiental learning,
which benefits from models but is not the same as the pure imitation of
other studies.
Many writers give some sort of advice and hints but they are not coher-
ently connected to the actual study process. Partly this is due to the heuris-
tic nature of the comparative law methodology, which means that getting
acquainted with model studies and experiental learning from them is of
great significance. This does not perhaps differ from the nature of law itself
as the famous American judge and legal scholar Oliver Wendell Holmes
(1841–1935) said as early as in 1881: ‘The life of law has not been logic:
it has been experience’.50 This idea of Holmes can be interpreted in many
ways, but it fits extremely well the methodological experiences of com-
paratists of their own field.

49O Brusiin, ‘Oikeusvertailusta’ (1954) 52 Lakimies 434, 439.

50OW Holmes, The Common Law, first published 1881 (New York, Barnes & Noble,
2004) 1.