Methods of Comparative Law: Developments in the 20th century and contemporary perspectives

Abstract

As a legal discipline, Comparative Law presents a great theoretical and practical potential to make Jurisprudence progress, particularly through its ability to overcome internal points of view in the analysis of questions presented by legal orders when dealing with normatively relevant issues. In spite of its importance, it is, at times, prematurely grasped as a mere factual approximation between cases, norms or solutions, whose results are, much more, a resource to illustrate, colorandi causa, certain positions than to actually justify, on a scientifi c-methodological basis, an argumentation. This article is elaborated with the objective of critically introducing the methodological grounds of Comparative Law, allowing for reflection upon its role within legal theory and upon the hermeneutic tools it makes available to the comparatist. For this purpose, it analyses the journey through the objection to the dogmatism present in the comparatist approach from the end of the nineteenth century until contemporary times, with the rise of post-modern and neo-functionalist theories. In this context, the functionalist method of Comparative Law, as well as the criticism of it and the formulation of methodological alternatives, such as the thesis of the cultural dimension of Comparative Law by Erik Jayme and the contemporary perspectives of reconception of the functionalist method by Jaakko Husa and Ralf Michaels, will deserve special attention. At the end, final considerations about the criteria guiding the researcher in the choice of the most adequate method to conduce her investigations will be made.

Keywords: Comparative Law, method, functionalism, cultural dimension of Law, moderate functionalism.