The Functional Method of Comparative Law
The most up-to-date version of this piece can be found in the Duke Law Scholarship
The functional method has become both the mantra and the bête noire of contemporary comparative law. The debate over the functional method is the focal point of almost all discussions about the field of comparative law as a whole, about centers and peripheries of scholarly projects and interests, about mainstream and avant-garde, about ethnocentrism and orientalism, about convergence and pluralism, about technocratic instrumentalism and cultural awareness, etc. Not surprisingly, this functional method is a chimera, both as theory and as practice of comparative law. In fact, “the functional method” is a trifold misnomer: There is not one (“the”) functional method but many, not all methods so called are functional at all, and some projects claiming adherence to it do not even follow any recognizable method. This paper first places the functional method in a historical and interdisciplinary context, in order to see its connections with, and peculiarities opposed to, the debates about functionalism in other disciplines. Second, it tries to use the functionalist method on the method itself, in order to determine how functional it is. This makes it necessary to place functionalism within a larger framework – not within the development of comparative law, but instead within the rise and fall of functionalism in other disciplines, especially the social sciences. Thirdly, the comparison with functionalism in other disciplines enables us to see what is special about functionalism in comparative law, and why what would in other disciplines rightly be regarded as methodological shortcomings may in fact be fruitful for comparative law. This analysis leads to surprising results. Generally, one assumes that the strength of the functional method lies in its emphasis on similarities, its aspirations towards evaluation and unification of law. Actually, the functional method emphasizes difference, it does not give us criteria for evaluation, and it provides powerful arguments against unification. Further, one generally assumes that the functional method does not account sufficiently for culture and is reductionist. However, the functional method not only requires us to look at culture, but also enables us, better than other methods, to formulate general laws without having to abstract from the specificities. The problem is that the functional method, as generally described, combines a number of different concepts of function: an evolutionary concept, a structural concept, a concept focusing on equivalence. The relation between these different concepts within the method is unclear, its aspirations therefore unrealistic. If we reconstruct the method plainly on the basis of functional equivalence as the most robust of the three concepts of function and emphasize an interpretative as opposed to a scientific approach, we realize that the functional method can make less claims, but at the same time is less open to some of the critique voiced against it. In short, the functional method is strong as a tool for understanding, comparing, and critiquing different laws, but a weak tool for evaluating and unifying laws. It helps us in tolerating and critiqueing foreign law, it helps us less in critiquing our own.
Date of Authorship for this Version
Michaels, Ralf, "The Functional Method of Comparative Law" (2005). Duke Law School Faculty Scholarship Series. Paper 26.