An Introduction to Comparative Law Theory and Method

by Geoffrey Samuel, François Ost (Editor), Mark Van Hoecke (Editor)

Overview

This short book on comparative law theory and method is designed primarily for postgraduate research students whose work involves comparison between legal systems. It is, accordingly, a book on research methods, although it will also be of relevance to all students (undergraduate and postgraduate) taking courses in comparative law and to academics entering the field of comparison. The substance of the book has been developed over many years of teaching general theory of comparative law, primarily on the European Academy of Legal Theory programme in Brussels but also on other programmes in French, Belgian and English universities. It is arguable that there has been to date no single introductory work exclusively devoted to comparative law methodology and thus this present book aims to fill this gap.

Product Details

ISBN-13:	9781849466431
Publisher:	Bloomsbury Academic
Publication date:	05/29/2014
Series:	European Academy of Legal Theory Series , #11
Pages:	232
Product dimensions:	6.14(w) x 9.21(h) x 0.49(d)

About the Author

Geoffrey Samuel, MA, LLB, PhD (Cantab), Dr (Maastricht) Dr (honoris causa) (Nancy 2), has been Professor of Law at Kent Law School since 1997 and is a Professor affilié in the École de Droit, Sciences-Po, Paris since 2012. He is, or has been, a Visiting professor at the Universities of Dijon, Nancy, Paris I and Paris II, Zaragoza, Sciences-Po, Lille, Bordeaux, Littoral, Fribourg, Auckland, Corsica and Aix-en-Provence.

Table of Contents

Preface vii

Contents ix

List of Figures xiii

Principal Abbreviations xv

List of Common Law Cases xvii

Introduction 1

1 Problems and Promises of Comparative Law 8

I Levels of Difficulty 8

II Definitional Problems 10

III Methodology 13

IV Weaknesses and Strengths of Comparative Law 15

V Theory and Anti-theory 19

VI Comparative Law as Epistemology 21

VII Interdisciplinarity 23

2 Asking the Right Question 25

I Framing the Right Question 25

II Literature Review and the Research Question 26

III Coherence and Non-coherence 27

IV Reflecting on the Literature 29

V Clarity of the Research Question 31

VI Testing and Reformulating the Research Question 34

VII Orientation 34

VIII Validation of Assertions 39

IX Reductionism and Harmonisation 41

X Review and Reflection 43

3 What is 'Comparison'? 45

I Goals and Models of Comparison 45

II Beyond Modellisation 48

III Macro and Micro Approaches 50

IV Differential Comparison 53

V Genealogical and Analogical Comparison 57

VI Internal and External Perspectives 60

VII Comparative Methods and Law 64

4 Functional Method 65

I Functional Approach in Comparative Law 65

II Practical Examples; Good Faith and Abuse of Rights 69

III Functionalism and Case Studies 71

IV Promise of Functionalism 76

5 Alternatives to Functionalism 79

I Problems with the Functional Approach 79

II Schemes of Intelligibility 81

III Analysis of Schemes 84

IV Law and the Dialectical Scheme 89

V Methods and Knowledge 92

6 Structural Method 96

I Legal Structures 96

II Norm Structure 99

III Rights and Structural Relations 102

IV Structural Comparison 106

7 Hermeneutical Method 108

I Deep Hermeneutical Approach 108

II Deep Hermeneutics and the Problem of Structuralism 111

III Structuralism and Transplants 115

IV Legal Mentality 118

8 What is 'Law' (1)? 121

I Rule model 121

II Realist Model 124

III Mentalities 126

IV Concepts 128

V Systems 131

VI Object of Comparison: Résumé 133

9 What is Law (2)? 135

I Positivism and Causality 135

II Systems and Interpretation 137

III Monism, Dualism and Pluralism 141

IV System and Language 144

V Law and Fact 147

VI Virtual Facts 148

VII Comparison and Law: Reflections 151

10 Paradigm Orientations 152

I Introductory Remarks 152

II Holism versus Individualism 153

III Order versus Disorder 156

IV Nature versus Culture 159

V Comparative Law and the Cultural Paradigm 163

VI Cultural Paradigm and Legal Theory 165

VII Interaction of Paradigms 166

VIII Enquiry versus Authority 168

Concluding Remarks: A Methodological Road Map? 173

Bibliography 180

Index 191

Editorial Reviews

The author provides a short introduction to various models by which law is conceptualised, mostly by works of jurisprudence and sociology of law, from the rule model to the system model, and the fundamental dichotomies dividing them, showing how problematic it is to subscribe to any of them. (...) As comparative law studies move onward, the map that Samuel unfolds on the table will have to be expanded, but without it much would not be known, understood or perhaps even noticed.
Zeitschrift fur Europaisches Privatrecht

This is an ambitious project by Geoffrey Samuel and one that hopefully exposes more scholars and students to the variety of methodological and theoretical approaches of comparative law and comparative legal theory...The potential methodological framework through the ten dichotomies in the concluding remarks provides an excellent road map for issues that researchers should keep in mind when embarking on a comparative legal theory project...For those who are in the target audience and are interested in questions about comparative law and legal theory, this text should be a welcome resource.
Law and Politics Book Review

This volume is...a recapitulation of the reflection carried out by one of the most renowned, critical and thoughtful scholars in the field...this book is certainly a must read.
The Rabel Journal of Comparative and International Private Law

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