The Structures of Comparative Law: Metaphors and Methods
November 15, 2022
Comparative law is the crossroads of extremely varied methodologies and tendencies. In order to orient oneself in this wide-ranging field, it is necessary to employ a profound critical approach aimed at highlighting the merits and the risks of each trend. Generally, it is usual to distinguish comparative law methods into a micro-comparatist and a macro-comparatist level. Micro-comparison being a close approach to particular rules – like formation of contracts or transfer of property – and macro-comparison representing a more distant approach when an entire legal system is confronted with another. We may then say that if functionalism has operated mainly in the first field, the structuralist method has dominated the second type of approach (Van Hoecke 2015).
In the field of human sciences, it is possible to define the structuralist method as the reading key that allows focusing on and bringing out those hidden structures that inhabit social practices (Samuel 2014: 81-82). These elements cooperate in the construction of a cultural framework which characterizes a particular type of experience (religious, juridical, political, philosophical, literary). Structuralism is thus supposed to be the most powerful tool available to highlight those regularities that would otherwise be unnoticed.
One of the ways in which the structuralist method developed in legal analysis was through the classification and distinction of legal experiences into families or, indeed, systems. In this kind of practice, legal norms become the first step in drawing analogies and similarities between principles and concepts.
Obviously, the act of separating and distinguishing as well as the consequent decision of creating legal families acts as an essential element in the practice of classification. In this sense, legal families are not something that exists in nature but constitute the product of the interpreter’s choice. The identification of structures, and in particular of hidden structures, depends on the theory of the observer and her interpretation of a legal tradition. Thus structuralism, more often than not, displays a high degree of subjectivity under a veil of alleged objectivism.
In this sense, comparative law has experienced a strong inner tension that often challenged its basic assumptions. On the one hand, there is an appeal to objective structural classification, and on the other, the obvious need for an interpretation to make sense of the complexity of legal traditions.
From this standpoint, it is also important to notice the inherent tension that exists between structures and history. A structural approach implies that certain elements that define a legal system endure over time. Identifying some element as a structural component of a tradition presupposes that it is something stable and fixed. But legal traditions evolve and the same elements, such as contract in the field of private law, or presidential prerogatives in the domain of constitutional law, assume meanings and configurations which were unexpected, changing the nature of the institution within the legal process. In this sense, what we call a legal tradition has no fixed characteristics. Structures are always in flux. And structures require interpretation to be identified (Legrand 1996).
Underlying the structuralist approach is also the idea that the components of every legal system cannot be analyzed independently of one another, but must be observed and evaluated in light of their mutual relationships. In this sense, the law is not simply the sum of the specific elements in which every legal framework is expressed (rights, duties, punishments, etc.) but the product of an organic connection of all these elements together.
The philosophical hermeneutic turn of the second half of the twentieth century marked a profound change in social studies, dismantling the easy convictions of the structuralist method and by illuminating, on the contrary, the multiplicity of conceptual schemes that, from time to time, are employed in the construction of scientific theories.
This, of course, should not diminish the achievements of the structuralist approach; important achievements in comparative law that we still use today in our understanding of legal phenomena come directly from this method. On the contrary, it is necessary to verify to what extent it is possible to build structures and families in light of the profound changes that globalization has imprinted on the categories and concepts of law.
In this sense, what awaits the comparatist is a profound rethinking of both the functionalist and the structuralist methods, as well as a different configuration of practices and approaches that would lead to the acceptance of a methodological pluralism inside the discipline. The analysis of structures and of the relationships between them becomes a significant first step for achieving an effective improvement in comparative legal theories.
James Gordley has critically analyzed the premises of the functionalist method. (Gordley 2012: 107). One premise concerns the relationship between concept and function. As such, Gordley’s analysis also serves as a basis for discussion of the structural method. Rules, which have functions or purposes, are framed in terms of concepts. The premise of functionalists is that, unless concepts are themselves defined in terms of the purposes that the rules serve, they become doctrinal abstractions that are obstacles to understanding the rules.
The mistake, then, according to Gordley has been to go to one of two extremes: to try to understand rules in terms of concepts and without regard to purposes, or to try to understand rules in terms of purposes without relating these purposes to the concepts with which the rules are framed.
The first mistake was made by the nineteenth-century conceptualists. They defined contract in terms of the will of the parties without asking why the will of the parties should be binding. In the early twentieth century, some jurists swung to the opposite extreme. Instead of defining the concepts with which a rule was framed in terms of the purposes the rule was to serve, they thought of the appeal to purposes as a trump card that could be played whenever the application of the rule seemed unsatisfactory. The purposes they had in mind were often not the purposes a specific rule was supposed to serve, but the purposes of the legal order as a whole.
As Gordley highlights, a second difficulty of the functional method in law concerns exactly what we mean by function or purpose.
In biology or engineering, function means the end served by an organ, or a part of a machine. An end which accounts for its characteristics and its own contribution to the functioning of the larger structure of which it is a part: the organism, or the machine. But the function or purpose of a rule of law is not like that of an organ or a machine part. Legal rules can be adopted and preserved by people who are not altogether unconscious of their purpose, like an animal or plant, nor fully conscious of their purpose, like an engineer. Biology and engineering are then imperfect models to describe legal action even if they are constantly employed as metaphors in legal theory.
As Michaels has noted, one version of functionalism in law, which he calls adaptive, is modelled exactly on evolutionary biology. Rules are adopted and survive, not because their purposes are understood even dimly by those who adopt or preserve them, but because the rules survived in competition with rules that failed to serve those purposes as well (Michaels 2006: 339).
Another version of functionalism in law, which Michaels calls instrumental, is modeled on engineering. This is referred to as “social engineering”. Like the engineer, the instrumentalist begins by knowing the functions or purposes that he wants an institution to achieve. He then devises rules or interpretations to serve these purposes using skills like those of an engineer.
Moreover as Max Radin had already noted, as long as the function of an institution may be multifarious and also serve alternative purposes, and the outcome depends on a reconstruction of the function, this can result in “pure subjectivism”. Interpreting the function of a norm is not so different from interpreting the norm itself, only with less constraints given by the resistance of the text to interpretation (Radin 1930).
We may also add another consideration, that, from the perspective of comparative law, functionalism presupposes that legal systems all face the same problems, even if they attempt to solve these problems by quite different means. We can compare the function of different institutions only if we suppose that these different institutions deal with the same problems. Gordley’s conclusion is that the functionalist method works in law when different legal systems actually do confront the same problems, but it need not presume that they always do so.
From the standpoint of methods, Sebastien McEvoy has proposed conceptual research on a) the descriptive; and b) the purposive categories of comparative law. (McEvoy 2012). Here, descriptive comparison merely means something like “bringing together” or “relating”, for instance English and French law, present and past law, law and linguistics, law and economics, and so on. Purposive categories are meant to explain similarities or differences so that the scholar can search for causal connections, evaluate or criticize solutions and the way they are reached. Comparison should lead, in speculative research, to an explanation of the similarities and differences and, in applied research, to their critical evaluation and to proposals for changes, in view, for instance, of the harmonization or unification of laws.
This categorization provides the coordinates to locate research in comparative law. It also includes legal history, law and sociology, law and literature, and so on. comparative law thus defined is a source of arguments both for and against the harmonization and unification of the law. It also can be used as a source of arguments against a systematic theory of law. The diversity that comparative law reveals, while calling for explanatory theories, can be the object of contemplation, but also of critical evaluation.
What is needed, instead, is a reappraisal of these classic attitudes to unpack the way they have created a legal geography of the world which still serves today for projects of governance and reforms, and which still dominates the imagination of the legal scholar (Samuel and Glanert 2021).
Comparative law has been historically used to define, or better, to construct and transform legal identities. Globalization, worldwide financial reforms, and China’s emergence as a potential global power have given rise to a regulatory landscape that is complex, diversified, and at times fragmented. This new world order is challenging the conventional methodologies of comparative law (Chen 2021).
In particular three core dichotomies in global finance – private vs. public, global vs. local, and West vs. East – have been called into question. A major theme in the globalization of legal relationships is the emergence of new sources of normativity, including supranational ones such as the EU, the WTO, and the World Bank. Moreover, China is assuming the role of a new non-Western source of normativity in international financial markets. In light of these developments, the question Kelly Chen raises is, how should comparisons be made in legal landscapes composed of supranational, global, and transnational norm-setters and pluralistic regulatory orders?
In this regard, she argues that mainstream comparative law falls somewhat short. For a long time, it focused on the positive law of nation states, especially in the field of private law. Financial law, shaped by globalization and an intricate interplay of private and public law, requires particular comparative techniques and skills. She also argues that financial law could serve as a central case for the methodological debates in comparative law in the twenty-first century. She rightly observes that the variety of comparative inquiries calls for methodological approaches that are flexible, but that a certain core of methodology would be needed.
Globalization poses three main challenges to comparative law: an increasingly blurred line between private and public law, the emergence of new global regulatory processes, and a shift from Eurocentrism. New methods are thus needed for comparing legal landscapes that are shaped by new global sources of normativity outside the standard framework of national laws or of legal families. It is not only a matter of convergence or divergence of legal systems, but one of new landscapes of the law emerging from untraditional processes of lawmaking.
These challenges do require a self-critical approach to comparative law. The comparatist should be aware of underlying biases that might exist, in the West as well as in the East, when comparing regulatory systems of different cultures, and new regulatory systems that transcend traditional legal cultures. As Chen clearly states in terms of the global financial system, only comparative studies can generate in-depth analysis of why certain similarities and differences might exist between various financial regulatory frameworks, which is of vital importance for developing legal solutions to collective concerns in international financial markets.
A critical revision of the way in which legal families have been built trying to uncover and underline the purposive, non-neutral projects behind classifications of world legal traditions becomes crucial. The map of the legal world that emerged constitutes an essential element of the representation of the world legal order and for projects of governance at the global level.
Chen, Kelly (2021), “Comparative Law and the Financial Markets in the 21th Century”, in Lindskog, S. et al. (eds.), Festschrift to Jan Kleineman, Stockholm: Jure.
Gordley, James (2012), “The Functional Method”, in Pier Giuseppe Monateri (ed.), Methods of Comparative Law, Cheltenham: Edward Elgar, p. 107.
Legrand, Pierre (1996), “European Legal Systems Are Not Converging” 45 Int’l & Comp. L.Q. 52.
McEvoy, Sebastian (2012), “Descriptive and Purposive Categories of Comparative Law”, in Pier Giuseppe Monateri (ed.), Methods of Comparative Law, Cheltenham: Edward Elgar, p. 144.
Michaels, Ralf (2006), “The Functional Method of Comparative Law”, in Mathias Reimann & Reinhard Zimmermann (eds.) The Oxford Handbook of Comparative Law, 2nd ed., Oxford: Oxford University Press, p. 339.
Radin, Max (1930), “Statutory Interpretation” 43 Harv. L. Rev. 863.
Samuel, Geoffrey (2014), An Introduction to Comparative Law: Theory and Method, Oxford: Hart Publishing.
Samuel, Geoffrey and Glanert, Simone (2021), Rethinking Comparative Law, Cheltenham: Edward Elgar.
Van Hoecke, Mark (2015) “Methodology of Comparative Legal Research”, in Law and Method, Boom: Boom Juridische Uitgevers, p. 1.