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    General Avoidance

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    daniel
    1. Many scholars avoid discussing general methodological questions in comparative law. While some authors dedicate chapters or introductions to comparative method, they fail to clearly define or describe the actual process of comparison. 2. Gutteridge's book includes a chapter on comparative method but does not describe the process, instead only discussing the need to compare "like with like" systems without defining likeness. 3. Schlesinger et al's casebook introduces comparative law as a method but does not explain how to compare, focusing more on illustrating uses through cases and notes. 4. Prominent works in comparative law clearly state their purposes but pay little attention to articulating or employing actual measures used to differentiate the

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    General Avoidance

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    daniel
    25 views2 pages
    1. Many scholars avoid discussing general methodological questions in comparative law. While some authors dedicate chapters or introductions to comparative method, they fail to clearly define or describe the actual process of comparison. 2. Gutteridge's book includes a chapter on comparative method but does not describe the process, instead only discussing the need to compare "like with like" systems without defining likeness. 3. Schlesinger et al's casebook introduces comparative law as a method but does not explain how to compare, focusing more on illustrating uses through cases and notes. 4. Prominent works in comparative law clearly state their purposes but pay little attention to articulating or employing actual measures used to differentiate the

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    General Avoidance

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    1. Many scholars avoid discussing general methodological questions in comparative law. While some authors dedicate chapters or introductions to comparative method, they fail to clearly define or describe the actual process of comparison. 2. Gutteridge's book includes a chapter on comparative method but does not describe the process, instead only discussing the need to compare "like with like" systems without defining likeness. 3. Schlesinger et al's casebook introduces comparative law as a method but does not explain how to compare, focusing more on illustrating uses through cases and notes. 4. Prominent works in comparative law clearly state their purposes but pay little attention to articulating or employing actual measures used to differentiate the

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    25 views2 pages

    General Avoidance

    Uploaded by

    daniel
    1. Many scholars avoid discussing general methodological questions in comparative law. While some authors dedicate chapters or introductions to comparative method, they fail to clearly define or describe the actual process of comparison. 2. Gutteridge's book includes a chapter on comparative method but does not describe the process, instead only discussing the need to compare "like with like" systems without defining likeness. 3. Schlesinger et al's casebook introduces comparative law as a method but does not explain how to compare, focusing more on illustrating uses through cases and notes. 4. Prominent works in comparative law clearly state their purposes but pay little attention to articulating or employing actual measures used to differentiate the

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    1.

    General Avoidance

    Many scholars tend to avoid general methodological questions. Both Lawson and
    Watson stressed that comparative law “ can scarcely be systematic.” Even ostensible
    attempts to treat problems of comparison generally avoid fundamental question.

    For example, in his book Comparative Law Gutteridge dedicates an entire chapter to the
    process of comparison. Gutteridge thoughtfully addresses significant obstacles to useful
    comparisons (for example, the identification of sources and materials) and suggests
    strategies for overcoming them. Notwithstanding the explicit chapter heading, however, he
    does not describe comparison as a process. Instead, Gutteridge makes reference only to the
    need compare “like” with “like” in systems at the “same stage of legal, political, and
    economic development.” He negleets to discuss how one establishes “likeness” or
    “sameness” as a starting point or to propose a method for finding differences, however
    small, among “like” phenomena. Furthermore, he does not consider whether alternative
    purpose to be served leaves unanswered the basic question of why like-system comparisons
    are superior to different-system comparisons.

    Schlesinger, Baade, Herzog, and Wise dedicate the introduction of their popular
    casebook to the topic of comparative method. These authors define comparative law as a
    ‘method, a way of looking at legal problems, legal institutions, and entire legal systems,...
    [which can be used for] a wide variety of practical or scholarly purposes. Most of this
    discussion attempts to illustrate through cases and extensive notes the many uses of
    comparative method. The authors explain that valuable use of comparisons may be made in
    the application of a foreign solution as a model in a rule of decision or a piece of legislation,
    to demonstrate perspective by way of a contrast in the resolution of cross-border disputes
    through unification or harmonization, or in legal science, including empirical social science
    and jurisprudence. Despite the acknowledgement of the potential significance of this tool,
    the method of comoarison is nowhere described, and methodological questions are left
    largely unexplored.

    The approach taken by the authors described above is not unique. Instead, many works
    of comparative legal scholarship cantain limited reference to a particular method of
    comparison. Even whe n choices of purpose and content are clearly articulated, prominent
    comparatists do not explain how compare and contrast the phenomena they study. For
    example, merryman’s The Civil Law Tradition, David and Brierley’s Grand Systemes de Droid
    Contemporains, cappelletti’s The Judicial Process in Comparaative Perspective, and
    Damaska’s The Faces of Justice and state authority explain the purpose of their work.
    Merryman seeks to describe what is common to a foreign tradition. David and Brierley aim to
    catalogue the world’s systems. Cappelletti endeavors to solve socially significant problems.
    Damaska aspires to reconcile diverse legal cultures. They also identify and explain the
    specific content they compare. Merryman identifies deep-seated belief systems and related
    systemic attributes of a legal tradition. David and Brierley define legal families according to
    ideology and sources of law. Cappelletti focuses on observable phenomena of judicial
    process. Damaska takes a bifokal view of the structure of authority and function of
    government. Yet, they pay little attention to the actual measures they articulate and employ
    to differentiate these traditions, families, processes, and structures. The general avoidance
    of such question makes it difficult to evaluate the implicit methodological choices of leading
    contributions to comparative law.

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