1. Comparative Law – Continental Law
Prof. Giorgio F. COLOMBO

2. The Methods of Comparative Law
Lesson n.3

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?

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

5. 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?

6. 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)

7. 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

8. 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»

9. «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)

10. «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)

11. 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

12. 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

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

14. «Measuring the Law»

15. «Measuring the Law»

16. 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)

17. Conclusions Many methods/approaches Combination of them
Purpose of research