Intro to global law II
Week 1 – Functionalism and Universalism
Goals:
• Discuss the historical development of the field of comparative law and the role of
universalism in that process
• Explain the tension between universal principles and diverse national legal systems
which often underlies comparative legal analyses
• Apply their understanding of universalism in comparative law to compare how
various legal systems define tortious duties of care and private nuisance
• Recognize the primary characteristics of functional and formal comparative methods
• Identify the pros and cons of both functional and formal comparative methods
• Apply a functional comparative method to study tort law approaches in holding
public authorities accountable for insufficient climate change mitigation
Functionalism
• Praesumptio Similitudini & relationships to universalism
o Emphasis on functional similarities of socio-economic problems across
societies
o Praesumptio Similitudinis – = focussing on similarities; the presumption of
functional equivalents at the level of solutions
• Begin with functional (factual, not legal) questions about socio-economic problem
o Tertium comparationis – second order language describing the factual, socio-
economic problem
o Using as little legal terminology as possible
• Analysing beyond positive law where behavior dictates that
o Non-legal forms of social ordering
• How to approach foreign legal system?
o Internal perspectives, not external
o Pragmatic
o When having internal perspective: not only looking at one certain doctrine;
this would exclude legal opinions, other areas of law
o Goes against functionalism when only considering one doctrine
• The main advantage of the functional method is
o It provides the necessary link between the different rules that legal systems
tend to employ
o It is regarded as preferable to a strong positivist approach
o Functionalism is said to counter the tendency to assume that foreign legal
systems must have the same type of rules as one’s own country.
, • Limitations with functionalism
o Requires comparability
▪ Incomparable cannot be usefully compared and in law the only things
which are comparable are those which fulfil the same function
o Certain legal systems may need to be excluded from a comparative analysis
o Certain areas of law are seen as less suitable for a functional comparative
analysis than others because they are heavily influenced by geographical,
socio-political, cultural, and other peculiarities
• Critics of functionalism
o The functionalists are being criticised on the focus on similarities, which
concerns the endeavour to identify functional equivalents. The objection is
that it may be equally rewarding to look for functional dissimilarities, despite
formal differences
▪ In particular, such examples of formally similar but functionally
different rules are likely to occur when legal rules have been
transplanted from abroad, but do not match perfectly with the
conditions of the domestic society
o But they are also criticised against the Praesumptio similitudinis, because the
comparatist aim is to be ‘neutral as between similarity and difference’
• Comparison divided:
→ Research using the established method of comparative law is typically ‘micro-
comparison’ as it focuses on specific legal topics (e.g. strict liability in English and
German tort law)
→ This can be distinguished from ‘macro-comparisons’ which deal with legal systems
as a whole (e.g. English and German law) & legal families
• Should start with a functional question, avoiding any legal terms when describing the
problem
• Real-life / universal socio-economic problem =starting point, shared by the systems
compared !!
• Current laws only, rather laws of country than international laws
• 3 countries = good number for comparison (just choosing 2 can lead to false results):
here again there must be underlying similarity
• Start with primary recourses (legislation, court decisions) and secondary resources
should be consulted
• The starting point is the social problem that a victim has suffered damages, but that it
is impossible to show that this has been the result of someone else’s fault →
Urgenda case
• Foreign terms are usually translated, but occasionally the original terms are added in
brackets
Article: Methodology of Comparative Legal Research
, • In its most common understanding, the functional method doesn’t compare primarily
rules, but solutions to practical problems with conflicting interests
• What makes functionalism easier than the other ‘methods’ listed, is that it requires a
less thorough analysis of the broader cultural context, if any, and, hence, is more
accessible to the average legal researcher. It reduces the complexity of comparing
legal systems in a very attractive way for most researchers
• Functionalism typically applies at the level of micro-comparison
Micro comparison:
- detailed micro-comparisons of particular rules and countries
- focuses on specific legal topics (e.g. strict liability in English and German tort law)
Macro comparison:
- deals with legal systems as a whole (e.g. English and German law) as well as broad
divisions of the world into legal families
Examples of functional questions (=factual question)
• Is someone who emits noxious gases from their property responsible for harm
caused to their neighbours by exposure to the gas?
• Is a dog owner responsible for harm to wildlife caused by their unleashed dog?
• May a property owner harvest wildlife that is located on their own property at will?
o Specific types of wildlife: wild berries, deer, rabbits, etc
o ‘at will? Without licence or authorisation? Any time of the year? Any amount?
• No legal language or extra layers of legal language
• Formulate a problem that can be equally applicable to all legal parts of the law
Universalism
• The Stoics on natural law
o Natural is governed by Reason
o Natural law arises out of human reasoning
, o Natural law corresponds to moral duties
o Universal character of Nature & Reason
• Structure of Natural law
o Higher-order principles
o Lower-order rules
• Aristotle
o Synesis: good judgement in framing
rules
▪ Reasoning → reflection on
natural law
o Gnome: good judgement in deciding
cases
▪ Ensuring that the judge is using
natural law
• Aquinas & universalism under Christianity
o 4 types of law (eternal, natural, divine, human)
▪ No human has access to enteral law, divine law is the closes. Made by
the prophets. Natural law is like the way the stoics and Aristotle and a
way of natural law and morality. Human law is what the actually
possible law.
o Authority of positive law rooted in natural law
▪ Exercise of producing it
o Plurality of human laws supplementing universal natural law
o
• It is clear that legal systems are not completely uniform across the world
• It is the single set of principles
• Revealed and reasoned within drastically different circumstances in socio-
economic context
• =every society approaches similar circumstances differently
• = different rules result from same principle
• Comparative lawyers’ response is that functional uniformity may be more important
than the precise formal rules
o It matters that all law-makers have a similar aim, namely, to increase the
wealth of their countries
o as the praesumptio similitudinis indicates, the results are often equivalent
(presumption that the practical results are similar)
o 20th C The tendency towards uniformity
Week 1 – Functionalism and Universalism
Goals:
• Discuss the historical development of the field of comparative law and the role of
universalism in that process
• Explain the tension between universal principles and diverse national legal systems
which often underlies comparative legal analyses
• Apply their understanding of universalism in comparative law to compare how
various legal systems define tortious duties of care and private nuisance
• Recognize the primary characteristics of functional and formal comparative methods
• Identify the pros and cons of both functional and formal comparative methods
• Apply a functional comparative method to study tort law approaches in holding
public authorities accountable for insufficient climate change mitigation
Functionalism
• Praesumptio Similitudini & relationships to universalism
o Emphasis on functional similarities of socio-economic problems across
societies
o Praesumptio Similitudinis – = focussing on similarities; the presumption of
functional equivalents at the level of solutions
• Begin with functional (factual, not legal) questions about socio-economic problem
o Tertium comparationis – second order language describing the factual, socio-
economic problem
o Using as little legal terminology as possible
• Analysing beyond positive law where behavior dictates that
o Non-legal forms of social ordering
• How to approach foreign legal system?
o Internal perspectives, not external
o Pragmatic
o When having internal perspective: not only looking at one certain doctrine;
this would exclude legal opinions, other areas of law
o Goes against functionalism when only considering one doctrine
• The main advantage of the functional method is
o It provides the necessary link between the different rules that legal systems
tend to employ
o It is regarded as preferable to a strong positivist approach
o Functionalism is said to counter the tendency to assume that foreign legal
systems must have the same type of rules as one’s own country.
, • Limitations with functionalism
o Requires comparability
▪ Incomparable cannot be usefully compared and in law the only things
which are comparable are those which fulfil the same function
o Certain legal systems may need to be excluded from a comparative analysis
o Certain areas of law are seen as less suitable for a functional comparative
analysis than others because they are heavily influenced by geographical,
socio-political, cultural, and other peculiarities
• Critics of functionalism
o The functionalists are being criticised on the focus on similarities, which
concerns the endeavour to identify functional equivalents. The objection is
that it may be equally rewarding to look for functional dissimilarities, despite
formal differences
▪ In particular, such examples of formally similar but functionally
different rules are likely to occur when legal rules have been
transplanted from abroad, but do not match perfectly with the
conditions of the domestic society
o But they are also criticised against the Praesumptio similitudinis, because the
comparatist aim is to be ‘neutral as between similarity and difference’
• Comparison divided:
→ Research using the established method of comparative law is typically ‘micro-
comparison’ as it focuses on specific legal topics (e.g. strict liability in English and
German tort law)
→ This can be distinguished from ‘macro-comparisons’ which deal with legal systems
as a whole (e.g. English and German law) & legal families
• Should start with a functional question, avoiding any legal terms when describing the
problem
• Real-life / universal socio-economic problem =starting point, shared by the systems
compared !!
• Current laws only, rather laws of country than international laws
• 3 countries = good number for comparison (just choosing 2 can lead to false results):
here again there must be underlying similarity
• Start with primary recourses (legislation, court decisions) and secondary resources
should be consulted
• The starting point is the social problem that a victim has suffered damages, but that it
is impossible to show that this has been the result of someone else’s fault →
Urgenda case
• Foreign terms are usually translated, but occasionally the original terms are added in
brackets
Article: Methodology of Comparative Legal Research
, • In its most common understanding, the functional method doesn’t compare primarily
rules, but solutions to practical problems with conflicting interests
• What makes functionalism easier than the other ‘methods’ listed, is that it requires a
less thorough analysis of the broader cultural context, if any, and, hence, is more
accessible to the average legal researcher. It reduces the complexity of comparing
legal systems in a very attractive way for most researchers
• Functionalism typically applies at the level of micro-comparison
Micro comparison:
- detailed micro-comparisons of particular rules and countries
- focuses on specific legal topics (e.g. strict liability in English and German tort law)
Macro comparison:
- deals with legal systems as a whole (e.g. English and German law) as well as broad
divisions of the world into legal families
Examples of functional questions (=factual question)
• Is someone who emits noxious gases from their property responsible for harm
caused to their neighbours by exposure to the gas?
• Is a dog owner responsible for harm to wildlife caused by their unleashed dog?
• May a property owner harvest wildlife that is located on their own property at will?
o Specific types of wildlife: wild berries, deer, rabbits, etc
o ‘at will? Without licence or authorisation? Any time of the year? Any amount?
• No legal language or extra layers of legal language
• Formulate a problem that can be equally applicable to all legal parts of the law
Universalism
• The Stoics on natural law
o Natural is governed by Reason
o Natural law arises out of human reasoning
, o Natural law corresponds to moral duties
o Universal character of Nature & Reason
• Structure of Natural law
o Higher-order principles
o Lower-order rules
• Aristotle
o Synesis: good judgement in framing
rules
▪ Reasoning → reflection on
natural law
o Gnome: good judgement in deciding
cases
▪ Ensuring that the judge is using
natural law
• Aquinas & universalism under Christianity
o 4 types of law (eternal, natural, divine, human)
▪ No human has access to enteral law, divine law is the closes. Made by
the prophets. Natural law is like the way the stoics and Aristotle and a
way of natural law and morality. Human law is what the actually
possible law.
o Authority of positive law rooted in natural law
▪ Exercise of producing it
o Plurality of human laws supplementing universal natural law
o
• It is clear that legal systems are not completely uniform across the world
• It is the single set of principles
• Revealed and reasoned within drastically different circumstances in socio-
economic context
• =every society approaches similar circumstances differently
• = different rules result from same principle
• Comparative lawyers’ response is that functional uniformity may be more important
than the precise formal rules
o It matters that all law-makers have a similar aim, namely, to increase the
wealth of their countries
o as the praesumptio similitudinis indicates, the results are often equivalent
(presumption that the practical results are similar)
o 20th C The tendency towards uniformity
