Comparative Law – Continental Law Prof. Giorgio F. COLOMBO

The Methods of Comparative Law Lesson n.3

How to compare? Comparative law, as any science, has a specific methodology Methodology, however, has evolved during the course of the decades From legislation comparé to comparative law History of «extreme» comparison «Impossibility» to compare?

Many different methods Institutional Functional (Institutional) Cultural Law & Economics Other...?

Institutional Comparison Comparing Legal Institutions from two (or more) countries E.g. The contract in France and the contract in UK It is necessary to have the same institution Problems with incomplete overlapping Is a donation a contract?

Functional (Institutional) Comparison Comparing institutions performing the same function in two (or more) legal system «Which institution in system B performs an equivalent function to the one under survey in system B?» (Örücü) They do not have to be the same institution (e.g. Trust and fiducie; good faith and estoppel)

Functional (Institutional) Comparison (Samuel) Rule in home system Function of rule in home system How is the same function fulfilled in target system? Rule in target system Comparative conclusion

Limitations to Functional Comparison How to distinguish between the «object» and the «function»? Is the contract a legal institution or something which accomplishes the function of a contract? How to identify the «function» of a legal institution? E.g. Minority shareholders What if the same function is performed by something outside the legal system? Issues of comparability «Apples and Oranges»

«Cultural» Comparison To counter some shortcomings of the functional approach, scholars resorted to «culture» If you just compare the legal rule without acknowledging the cultural context, you may come to inaccurate conclusions American procedural law vs. German procedural law (Langbein)

«Cultural» Comparison The same rule may work very differently if put in different contexts In order for a legal institution to work within the system it must Be in line with the culture Be part of a cultural «transition» (e.g. Meiji Japan) Extreme positions «Real» comparison is impossible (Legrand)

Limitations to Cultural Comparison What is «culture»? Necessity to have some kind of definition How can a lawyer study «culture»? Anthropology Sociology Intedisciplinary works Overemphasizing the cultural argument Forgetting the textual data Accepting stereotypes

Law & Economics In the late 60’s, some prominent (liberist/libertarian) scholars at the University of Chicago developed a new method to analyze the law The application of microeconomics to the analysis of law →　evaluating norms according to their economic efficency

Law & Economics Use of mathematical, quantitative tools Application of this method on comparative studies Global studies on efficency of rules Policy making

«Measuring the Law»

«Measuring the Law»

Limitations to the L&E Approach Law is not only about economic efficency Law may (and sometimes should) be inefficent Extreme conclusions Murder could be economically efficent Shortcomings in quantitative analysis Numbers (e.g. Litigation in Japan)

Conclusions Many methods/approaches Combination of them Purpose of research