law in context methodology
In 1936, Roscoe Pound defined a ‘functional comparison’ as the ‘study of how the same thing may be brought about, the same problem may be met by one legal institution or doctrine or precept in one body of law and by another and quite different institution or doctrine or precept in another’ (Pound 1936, p. 59). Even at the level of the sheer description of foreign law one may, for instance, want to get a full and correct view of the law as it works in practice by taking interviews of relevant stakeholders and not limit oneself to consulting legislation, published case law and legal doctrine (or in case one doesn’t master sufficiently the local language).
Actually, the historical method is just one part of the ‘law-in-context method’, the context being here the historical origins of the present-day laws, which are compared. Other countries, such as Turkey, largely imported a European Code (the German BGB in this case).In Russia, after 1991, legal doctrine had to a large extent to make a new start, within a new paradigmatic framework. Indeed, similar results are often reached following different roads, or too harsh consequences of too strict rules are attenuated by other means. The main reason being that there is no agreement on the kind of methodology to be followed, nor even on the methodologies that could be followed.In this paper, an attempt is made to work out a methodology for comparative legal research, which goes beyond the ‘functional method’ or methodological scepticism.The starting point is the idea that we need a ‘toolbox’, not a fixed methodological road map, and that a lot of published, but largely unnoticed, research outside rule and case oriented comparative law offers varying approaches, which could usefully be applied in comparative research. He considered it the work of lawyers ‘to make law in the books such that the law in action can conform to it’ (p. 86).He defines the American paradigm as ‘vertical, unilateral, domestic, and political’ and the European one as ‘horizontal, multilateral, international, and apolitical’.For a more thorough analysis, see Van Hoecke 2004, p. 165-195.See on the territorial expansion of the common law: McPherson 2007, ch. Law in Context. The Law department has a strong tradition in legal research which seeks to explain and understand law in its social, political and economic context rather than as a detached and autonomous system of rules and principles (the so-called law in context approach).
Several members of the department and researchers are asking questions about the empirical foundations behind theoretical claims, and seek to unpack the process of how legal … (…) The expert on comparative legislation combines the information afforded by the legislation of the world on any point you like and pulls out the one right rule’ (Pound 1936, p. 57).Samuel 2014, p. 81, with references to Berthelot, 2001, p. 484, and Berthelot 1996, p. 81.The functional approach had been introduced to comparative law several decades earlier, partly along the line of fashionable ‘functionalist’ trends in other disciplines. By focusing on practical problems and their solutions, one may discover those different legal roads. After this, they contact their network for answering those questions.
What is specific to the common-core method is that one looks for a common core in view of the (possible) harmonization of a certain part of the law. This ‘conceptual framework’, which I have called the ‘paradigmatical framework’ (Van Hoecke & Warrington 1998, p. 513-520) indeed plays a decisive role in the way law is perceived, interpreted and applied.The (different) institutional contexts in the compared countries or societies play an important role in explaining apparent differences in law and legal practice.
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