It is also risky to combine legal systems with legal cultures that are at least partially unknown at the beginning of the research project. Suppose a research team wants to set up a global research project on divorce. To this end, they develop a detailed questionnaire with all kinds of questions on the grounds for divorce, the procedure and the legal consequences of each type of divorce. They then turn to their network to answer these questions. However, the answer will be largely biased if the questionnaire is based solely on Western law. Indeed, it will not take into account the “testimony” of a wife under Islamic law, which in Europe has sometimes been equated with a “consensual divorce”. It will not take into account traditional marriage in African countries, where legislation only regulates “official” (and monogamous) marriage, even if traditional common law marriage is accepted. This habitual marriage largely does not involve the concept of divorce, and it is not necessary to do so in the face of (unlimited) polygamy. This means that before setting up a large comparative research project of this type, different levels of comparison must be defined on the basis of these elements and their correct understanding. One cannot study divorce cross-culturally without a broader understanding of marriage, the role of the family, the general attitude towards divorce in each of the societies compared. 9 In France, at the beginning of the 20th century. In the nineteenth century, Raymond Saleilles and Edouard Lambert supported the work of the Société de législation comparée, which merely translated foreign law without taking into account its functioning in practice. These authors assumed that “real life” was to be found in case law (Saleilles 1891, p.
219). Lambert even opposed the use of the social sciences, which at that time were not yet sufficiently developed to provide sufficiently precise and useful information for comparative law (Lambert 1900, p. 237). How is it possible to make the law of different legal systems comparable while remaining “faithful” to each national system on its own terms? This question has irritated comparative lawyers for more than a century. Many of the traditional methods of comparative law must sacrifice one or the other of the objectives. So-called “functionalism,” for example, makes it possible to compare systems by identifying social goals or functions of law as central reference points of inquiry (i.e., how law works to solve social problems), but at the expense of treating individual systems as “black boxes” whose inner workings remain hidden. The historical method will almost always be a necessary part of the methods used to understand the differences and similarities between legal systems and to determine their degree of belonging to a deeply rooted tradition, or rather to random historical events. In general, Patrick Glenn answered this question under the heading “Objectives of comparative law”.4x In the Elgar Encyclopedia of Comparative Law (Glenn 2006). Compare the “objectives of comparative law research” listed by Esin Örücü (2007, pp. 53-56). He lists (a) comparative law as an instrument of learning and knowledge5xcomparison: “Comparative law is like other sciences in the sense that it must have as its aim the acquisition of knowledge. Like other branches of jurisprudence, it seeks legal knowledge” (Sacco 1991).
Sacco also refers to Zweigert and Kötz, who use similar wording in their introduction to comparative law (he refers to pages 16-17 of the second edition of the 1984 German version). (information on and understanding of law elsewhere), (b) comparative law as an instrument of evolution and taxonomy (common developments, diachronic changes, legal families), (c) contribution to one`s own legal system (better understanding, including resistance of its traditions, improvement of the law, use of the Constitution as a means of interpretation) and (d) harmonization of law. Glenn, however, criticizes much of the ideology that underpins traditional comparative law and largely persists today. There is a constructivist belief in the application of foreign law to one`s own, otherwise well-protected domestic legal system, or in the fact that the harmonization of law is only a technical matter, or in taxonomies of coherent “legal families”. There is also much Western imperialism in what William Twining called the “peasant and Western approach” to comparative law (Twining 2007, pp. 69-89). Nevertheless, these goals are still largely valid, even in more open, pluralistic and less constructivist comparative research, Glenn concludes. At a deeper level, there are also comparisons with legal culture.29x”Legal culture” is used in a broad sense that includes tradition, customs, worldview, paradigmatic legal frameworks, and anything that is not “law” in the strict sense, but influences legal thinking., legal argumentation (Bomhoff 2012), judicial decision-making (Lasser 2004), legal writing styles, divergent approaches to legal sources (MacCormick & Summers 1997; Komarek 2012) and the interpretation of law (MacCormick & Summers 1991) (e.g. the use of travaux préparatoires), the role of case law, the respective role of the legal professions (e.g.
Van Caenegem 1987), the role of form in law in relation to substance (Atiyah & Summers 1987). This comparative research has a strong theoretical dimension and attempts to trace the context in which legal systems are understood and applied by those working in these legal cultures. Methods of comparison at this level will be mainly analytical and historical, often revealing hidden worldviews that strongly guide attitudes towards the law. Even if these underlying legal cultures and worldviews are not part of positive law as such, they usually have a decisive influence on the final content of the law as applied in practice.30xSee, for example, explain a divergent application of the same European rules in England and Italy by the influence of Tradition Nebbia 2000. What about social science methodology? A law-based approach in context may require the use of at least some social science methods used (historical, economic, political, sociological, anthropological,…), unless relevant information is already available in the published research. Social science methods will then be an instrument within one of the chosen comparative methods. Even at the level of a simple description of foreign law, for example, a complete and correct overview of the law, its functioning in practice, can be obtained by conducting interviews with relevant stakeholders and not merely consulting legislation, published case law and legal doctrine (or by not having a sufficient command of the national language). However, it will continue to be part of a description of foreign law, which in turn will be part of some of the methods mentioned in the context of comparative scientific legal research. For example, comparative law can help international legal institutions such as those of the United Nations system to analyse the laws of different countries in relation to their treaty obligations. Comparative law would be applicable to private international law if an interpretative approach were developed in a conflict analysis.
Comparative law can contribute to legal theory by creating categories and concepts of general application. Comparative law can also provide insight into the issue of legal transplants, i.e. the transplantation of law and legal institutions from one system to another. The term legal transplants was coined by Alan Watson, one of the world`s most renowned jurists, specializing in comparative law.