Week 1. Introduction to the Methods of Comparative Law
What kind of discipline is comparative law?
It is in the nature of lawyers to always compare (for example by analogical reasoning: comparing the
legal code with the concrete cases). The discipline of comparative law requires a specific justification,
extending beyond mere juxtaposition of legal provisions. This justification can be found in the fact that
when you are explicitly comparing between two or more legal systems, you really need to get under the
skin of at least one other legal system to understand how people think about law. Besides that,
comparative law is interdisciplinary: the whole social and cultural context in which the law is
embedded has to be studied.
The purposes of comparative law
The theoretical purposes of comparative law are: 1) Acquiring knowledge: ‘He who knows one society,
knows no society’. 2) Putting your own presuppositions in perspective: comparative law can function as
a mirror. The practical purposes are: 1) Judges: it can be an inspiration for judicial decisions, for
example by filling gaps through drawing on precedents. 2) Legislators: it can be an inspiration for
legislators, for example adopting foreign laws into domestic legislation. 3) Policy makers: it can be
useful for the European Union to harmonize legal frameworks.
Challenges of comparative law – John Bell
Understanding the full institutional setting out of which the legal issues and solutions arise
In one’s own system, much of this is tacit knowledge. In relation to a foreign system, the researcher
needs to acquire more explicit knowledge and also has to make the tacit knowledge of his own system
more explicit, and also needs to let go of the glasses of his own legal system when studying another
legal system (to avoid a bias), to do an successful comparison with the other legal system.
The hermeneutic approach
This approach requires you to act as an fellow thinker, no judgement, just explaining and understanding.
The comparatist needs to adopt the internal point of view of the systems, but not necessarily to believe
either of them is right, fair or just.
Interpreting legal systems for dialogue
The comparatist has to interpret the systems to enable a dialogue between them. Each law is something
that has to be reconstructed in order to provide intelligible results to people from another legal system.
Comparing is more than simply putting two systems side by side.
Presenting research in understandable language
Try to find conceptual frameworks useful for both systems in order to explain differences/similarities
between them and present reasons for them. The challenge is to interpret your findings in a way that is
not too linked to your own frame of reference and can be understood by both legal systems you study.
Functionalism as a major research tool
The functional method (Zweigert & Kötz) helps you to formulate a comparative law research question
that allows you to make an effective legal comparison and prevent bias from your own national legal
system. So it has to be objective.
The purposes of functionalism
The purposes of this method are: 1) Framing a ‘neutral’ research question. 2) Finding a so-called tertium
comparationis (a heuristic device; a scientific strategy to solve problems systematically).
→ An example of functionalism as a very useful heuristic device: Italian unemployment benefits – this
example shows that functionalism wants, next to identifying the relevant rules, also to get rid of
,comparative law that starts with too much of a focus on rule → the comparatist ‘must eradicate the
preconceptions of his native legal system’.
Framing a research question – Zweigert & Kötz
‘The problem [to be researched] must be stated without any reference to the concepts of one’s own
legal system.’ Also, the local legal solutions ‘must be freed from the context of its own system (…) cut
loose from their conceptual context and stripped of their national doctrinal overtones, so that they may
be seen purely in the light of their function, as an attempt to satisfy a particular legal need.’ So we see
the lawyer kind of as an ‘architect’.
Translation into research question
Instead of asking ‘What formal requirements are there for sales contracts in foreign law?’ it is better to
ask ‘How does foreign law protect parties from surprise, or from being held to an agreement not
seriously intended?’. Functionalism draws heavily on the fact that the legal system of every society
faces the same problems and solves these problems by quite different means, though very often with
similar results. So the core of the functional method (universal societal problems ← different law →
similar solutions) highlights the commonality of legal dilemmas across diverse societies.
Challenges of the functional method → tunnel vision and bias:
Praesumptio similtudinis
This is the assumption that nations address the needs of legal business in similar ways. While this
presumption can provide valuable insights, it also underscores the need for vigilance against potential
biases and tunnel vision.
Rethinking research questions
If the conclusion is that the foreign system has ‘nothing to report’, the comparatist has to rethink the
original question and purge it of all the dogmatic accretions of his own system.
Similar practical results and functional equivalents
If the researcher finds no similar practical results in the systems he has compared or no functional
equivalent in the foreign legal order, he should check whether the terms in which he posed his original
research question were indeed purely functional, and whether he has spread the net of his researches
quite wide enough.
Zweigert & Kötz, ‘The Method of Comparative Law’
This text provides a detailed exploration of the methodologies employed in comparative legal studies.
The chapter begins by elucidating the fundamental objectives of comparative law, emphasizing its role
in understanding the similarities and differences between legal systems across various jurisdictions.
Zweigert and Kötz discuss the importance of a systematic and rigorous approach to
comparative legal analysis, highlighting the need for clarity in defining research questions and selecting
appropriate comparators. They explore the diverse methods used in comparative legal research,
including the functional method, historical method, and formal method, each offering unique insights
into the comparative analysis of legal systems.
The authors emphasize the significance of context in comparative legal studies, stressing the
importance of understanding the cultural, historical, and socio-political factors that shape legal
systems. They also address the challenges inherent in comparative legal research, such as the
complexities of translation, interpretation, and the limitations of available data.
Furthermore, Zweigert and Kötz discuss the role of legal theory in informing comparative legal
analysis, highlighting the influence of various theoretical frameworks, including legal positivism, natural
law, and legal realism. They explore how different theoretical perspectives shape researchers’
approaches to comparative law and contribute to the interpretation and evaluation of legal systems.
, Throughout the chapter, Zweigert and Kötz underscore the dynamic nature of comparative legal
methodology, noting its capacity to adapt to evolving research questions and methodologies. They
emphasize the importance of reflexivity and transparency in comparative legal research, encouraging
scholars to be mindful of their own biases and assumptions.
In conclusion, this chapter offers a comprehensive overview of the methodological foundations
of comparative legal research. It provides valuable insights for scholars and practitioners seeking to
engage in comparative legal analysis, highlighting the importance of methodological rigor, contextual
understanding, and theoretical reflexivity in the comparative study of legal systems.
Adams, M. (2018), ‘Structuur, praktijk en theorie van rechtsvergelijkend onderzoek’
The article presents a thorough examination of the structure, practice, and theory of comparative legal
research. Adams begins by elucidating the objectives of comparative legal research, emphasizing its
role in understanding legal systems across different jurisdictions. He discusses the diverse
methodologies employed in comparative legal studies, ranging from traditional doctrinal analysis to
more interdisciplinary approaches involving sociological and anthropological perspectives.
Adams delves into the theoretical frameworks that underpin comparative legal research,
highlighting the importance of contextual understanding and the challenges of applying comparative
methodologies effectively. The article also addresses the significance of comparative legal research in
addressing contemporary legal issues and fostering legal harmonization and convergence.
Furthermore, Adams explores the complexities and limitations inherent in comparative legal
research, including issues related to language barriers, cultural differences, and divergent legal
traditions. The article underscores the need for researchers to approach comparative legal studies with
sensitivity to these factors while striving for methodological rigor and transparency.
Throughout the discussion, Adams emphasizes the dynamic nature of comparative legal
research, noting its capacity to evolve in response to changing societal, political and economic
landscapes. The article concludes by emphasizing the ongoing relevance and significance of
comparative legal research in advancing legal scholarship and promoting cross-cultural understanding
in an increasingly interconnected world.
In summary, Adams’ article offers a comprehensive overview of comparative legal research,
encompassing its objectives, methodologies, theoretical foundations, challenges, and broader societal
implications. It serves as a valuable resource for scholars and practitioners seeking to engage in
comparative legal studies and contributes to the ongoing discourse on the nature and scope of
comparative law.
, Week 2. Methods of Comparative Law
Structuring comparative legal research
1. Identifying the research theme.
2. Formulating research question (dominant method is the functional one).
3. Comparability and choice of systems.
4. Producing a scheme of comparability (including tertium comparationis).
5. Identifying the legal rules.
6. Describing the legal rules to compare.
7. Comparing.
What is a tertium comparationis?
Tertium comparationis (Latin for ‘the third [part] of the comparison’) is the quality that two (or more)
things which are being compared have in common. It is the point of comparison which prompted the
author of the comparison in question to compare someone/something in the first place.
→ An example is the varieties of end-of-life medical behavior (MBPSL). Functional perspective on this
legal comparison: Medical behavior to potentially shorten life instead of Euthanasia.
How to understand similar systems in their context?
For example, to answer the question ‘what is normal medical practice?’, you have to cast the net wide
and be aware that language matters. The approach of casting the net wide involves examining diverse
perspectives and socio-political factors that influence legal interpretations and practices. By
contextualizing such debates, scholars gain deeper insights into the complexities of legal systems.
Case and country selection – Oderkerk
The choice depends on what your aim is and what you want to know (objective factors). The choice also
depends on your personal capacities, such as language, time and means, experience, etc. (subjective
factors). Oderkerk also gives some guidelines to make a choice and justify it:
A) Aim is reflection and exploration? Hardly any limitations in case and country selection (but look for
both similarities and differences).
B) Aim is to formulate new legislation? Include systems that offer valuable insights within similar
socio-economic contexts or development stages.
C) Aim is to formulate new legislation on a supranational level? Choose the systems that have to be
harmonized or unified, or that can teach you something.
D) Aim is to improve legislation on a supranational level? Include systems that offer valuable insights
within similar socio-economic contexts or development stages.
E) Limiting factors? Choice depends on your personal capacities.
Overarching terms used to compare systems – Gluckman vs. Bohanan
Gluckman’s pragmatic approach suggests using common terminology to highlight similarities while
acknowledging inherent variations within legal frameworks. Bohanan’s insights highlight the importance
of critically evaluating terminology and acknowledging the inherent complexities of legal systems, to
prevent the tendency to simulate understanding through familiar words.
→ Be aware: avoid tunnel vision as much as possible (also if you take Gluckman’s pragmatic approach).
Oderkerk, ‘The Importance of Context: Selecting Legal Systems in Comparative Legal Research’
This article provides a comprehensive examination of the pivotal role context plays in the practice of
comparative legal studies. Oderkerk argues that the selection of legal systems for comparison must be
approached with careful consideration of various contextual factors, including cultural, historical,
political, and socio-economic dimensions.
What kind of discipline is comparative law?
It is in the nature of lawyers to always compare (for example by analogical reasoning: comparing the
legal code with the concrete cases). The discipline of comparative law requires a specific justification,
extending beyond mere juxtaposition of legal provisions. This justification can be found in the fact that
when you are explicitly comparing between two or more legal systems, you really need to get under the
skin of at least one other legal system to understand how people think about law. Besides that,
comparative law is interdisciplinary: the whole social and cultural context in which the law is
embedded has to be studied.
The purposes of comparative law
The theoretical purposes of comparative law are: 1) Acquiring knowledge: ‘He who knows one society,
knows no society’. 2) Putting your own presuppositions in perspective: comparative law can function as
a mirror. The practical purposes are: 1) Judges: it can be an inspiration for judicial decisions, for
example by filling gaps through drawing on precedents. 2) Legislators: it can be an inspiration for
legislators, for example adopting foreign laws into domestic legislation. 3) Policy makers: it can be
useful for the European Union to harmonize legal frameworks.
Challenges of comparative law – John Bell
Understanding the full institutional setting out of which the legal issues and solutions arise
In one’s own system, much of this is tacit knowledge. In relation to a foreign system, the researcher
needs to acquire more explicit knowledge and also has to make the tacit knowledge of his own system
more explicit, and also needs to let go of the glasses of his own legal system when studying another
legal system (to avoid a bias), to do an successful comparison with the other legal system.
The hermeneutic approach
This approach requires you to act as an fellow thinker, no judgement, just explaining and understanding.
The comparatist needs to adopt the internal point of view of the systems, but not necessarily to believe
either of them is right, fair or just.
Interpreting legal systems for dialogue
The comparatist has to interpret the systems to enable a dialogue between them. Each law is something
that has to be reconstructed in order to provide intelligible results to people from another legal system.
Comparing is more than simply putting two systems side by side.
Presenting research in understandable language
Try to find conceptual frameworks useful for both systems in order to explain differences/similarities
between them and present reasons for them. The challenge is to interpret your findings in a way that is
not too linked to your own frame of reference and can be understood by both legal systems you study.
Functionalism as a major research tool
The functional method (Zweigert & Kötz) helps you to formulate a comparative law research question
that allows you to make an effective legal comparison and prevent bias from your own national legal
system. So it has to be objective.
The purposes of functionalism
The purposes of this method are: 1) Framing a ‘neutral’ research question. 2) Finding a so-called tertium
comparationis (a heuristic device; a scientific strategy to solve problems systematically).
→ An example of functionalism as a very useful heuristic device: Italian unemployment benefits – this
example shows that functionalism wants, next to identifying the relevant rules, also to get rid of
,comparative law that starts with too much of a focus on rule → the comparatist ‘must eradicate the
preconceptions of his native legal system’.
Framing a research question – Zweigert & Kötz
‘The problem [to be researched] must be stated without any reference to the concepts of one’s own
legal system.’ Also, the local legal solutions ‘must be freed from the context of its own system (…) cut
loose from their conceptual context and stripped of their national doctrinal overtones, so that they may
be seen purely in the light of their function, as an attempt to satisfy a particular legal need.’ So we see
the lawyer kind of as an ‘architect’.
Translation into research question
Instead of asking ‘What formal requirements are there for sales contracts in foreign law?’ it is better to
ask ‘How does foreign law protect parties from surprise, or from being held to an agreement not
seriously intended?’. Functionalism draws heavily on the fact that the legal system of every society
faces the same problems and solves these problems by quite different means, though very often with
similar results. So the core of the functional method (universal societal problems ← different law →
similar solutions) highlights the commonality of legal dilemmas across diverse societies.
Challenges of the functional method → tunnel vision and bias:
Praesumptio similtudinis
This is the assumption that nations address the needs of legal business in similar ways. While this
presumption can provide valuable insights, it also underscores the need for vigilance against potential
biases and tunnel vision.
Rethinking research questions
If the conclusion is that the foreign system has ‘nothing to report’, the comparatist has to rethink the
original question and purge it of all the dogmatic accretions of his own system.
Similar practical results and functional equivalents
If the researcher finds no similar practical results in the systems he has compared or no functional
equivalent in the foreign legal order, he should check whether the terms in which he posed his original
research question were indeed purely functional, and whether he has spread the net of his researches
quite wide enough.
Zweigert & Kötz, ‘The Method of Comparative Law’
This text provides a detailed exploration of the methodologies employed in comparative legal studies.
The chapter begins by elucidating the fundamental objectives of comparative law, emphasizing its role
in understanding the similarities and differences between legal systems across various jurisdictions.
Zweigert and Kötz discuss the importance of a systematic and rigorous approach to
comparative legal analysis, highlighting the need for clarity in defining research questions and selecting
appropriate comparators. They explore the diverse methods used in comparative legal research,
including the functional method, historical method, and formal method, each offering unique insights
into the comparative analysis of legal systems.
The authors emphasize the significance of context in comparative legal studies, stressing the
importance of understanding the cultural, historical, and socio-political factors that shape legal
systems. They also address the challenges inherent in comparative legal research, such as the
complexities of translation, interpretation, and the limitations of available data.
Furthermore, Zweigert and Kötz discuss the role of legal theory in informing comparative legal
analysis, highlighting the influence of various theoretical frameworks, including legal positivism, natural
law, and legal realism. They explore how different theoretical perspectives shape researchers’
approaches to comparative law and contribute to the interpretation and evaluation of legal systems.
, Throughout the chapter, Zweigert and Kötz underscore the dynamic nature of comparative legal
methodology, noting its capacity to adapt to evolving research questions and methodologies. They
emphasize the importance of reflexivity and transparency in comparative legal research, encouraging
scholars to be mindful of their own biases and assumptions.
In conclusion, this chapter offers a comprehensive overview of the methodological foundations
of comparative legal research. It provides valuable insights for scholars and practitioners seeking to
engage in comparative legal analysis, highlighting the importance of methodological rigor, contextual
understanding, and theoretical reflexivity in the comparative study of legal systems.
Adams, M. (2018), ‘Structuur, praktijk en theorie van rechtsvergelijkend onderzoek’
The article presents a thorough examination of the structure, practice, and theory of comparative legal
research. Adams begins by elucidating the objectives of comparative legal research, emphasizing its
role in understanding legal systems across different jurisdictions. He discusses the diverse
methodologies employed in comparative legal studies, ranging from traditional doctrinal analysis to
more interdisciplinary approaches involving sociological and anthropological perspectives.
Adams delves into the theoretical frameworks that underpin comparative legal research,
highlighting the importance of contextual understanding and the challenges of applying comparative
methodologies effectively. The article also addresses the significance of comparative legal research in
addressing contemporary legal issues and fostering legal harmonization and convergence.
Furthermore, Adams explores the complexities and limitations inherent in comparative legal
research, including issues related to language barriers, cultural differences, and divergent legal
traditions. The article underscores the need for researchers to approach comparative legal studies with
sensitivity to these factors while striving for methodological rigor and transparency.
Throughout the discussion, Adams emphasizes the dynamic nature of comparative legal
research, noting its capacity to evolve in response to changing societal, political and economic
landscapes. The article concludes by emphasizing the ongoing relevance and significance of
comparative legal research in advancing legal scholarship and promoting cross-cultural understanding
in an increasingly interconnected world.
In summary, Adams’ article offers a comprehensive overview of comparative legal research,
encompassing its objectives, methodologies, theoretical foundations, challenges, and broader societal
implications. It serves as a valuable resource for scholars and practitioners seeking to engage in
comparative legal studies and contributes to the ongoing discourse on the nature and scope of
comparative law.
, Week 2. Methods of Comparative Law
Structuring comparative legal research
1. Identifying the research theme.
2. Formulating research question (dominant method is the functional one).
3. Comparability and choice of systems.
4. Producing a scheme of comparability (including tertium comparationis).
5. Identifying the legal rules.
6. Describing the legal rules to compare.
7. Comparing.
What is a tertium comparationis?
Tertium comparationis (Latin for ‘the third [part] of the comparison’) is the quality that two (or more)
things which are being compared have in common. It is the point of comparison which prompted the
author of the comparison in question to compare someone/something in the first place.
→ An example is the varieties of end-of-life medical behavior (MBPSL). Functional perspective on this
legal comparison: Medical behavior to potentially shorten life instead of Euthanasia.
How to understand similar systems in their context?
For example, to answer the question ‘what is normal medical practice?’, you have to cast the net wide
and be aware that language matters. The approach of casting the net wide involves examining diverse
perspectives and socio-political factors that influence legal interpretations and practices. By
contextualizing such debates, scholars gain deeper insights into the complexities of legal systems.
Case and country selection – Oderkerk
The choice depends on what your aim is and what you want to know (objective factors). The choice also
depends on your personal capacities, such as language, time and means, experience, etc. (subjective
factors). Oderkerk also gives some guidelines to make a choice and justify it:
A) Aim is reflection and exploration? Hardly any limitations in case and country selection (but look for
both similarities and differences).
B) Aim is to formulate new legislation? Include systems that offer valuable insights within similar
socio-economic contexts or development stages.
C) Aim is to formulate new legislation on a supranational level? Choose the systems that have to be
harmonized or unified, or that can teach you something.
D) Aim is to improve legislation on a supranational level? Include systems that offer valuable insights
within similar socio-economic contexts or development stages.
E) Limiting factors? Choice depends on your personal capacities.
Overarching terms used to compare systems – Gluckman vs. Bohanan
Gluckman’s pragmatic approach suggests using common terminology to highlight similarities while
acknowledging inherent variations within legal frameworks. Bohanan’s insights highlight the importance
of critically evaluating terminology and acknowledging the inherent complexities of legal systems, to
prevent the tendency to simulate understanding through familiar words.
→ Be aware: avoid tunnel vision as much as possible (also if you take Gluckman’s pragmatic approach).
Oderkerk, ‘The Importance of Context: Selecting Legal Systems in Comparative Legal Research’
This article provides a comprehensive examination of the pivotal role context plays in the practice of
comparative legal studies. Oderkerk argues that the selection of legal systems for comparison must be
approached with careful consideration of various contextual factors, including cultural, historical,
political, and socio-economic dimensions.
