Addressing Methodological Challenges in Comparative Law Research

Comparative law is a field of study whose object is the comparison of legal systems with a view to obtaining knowledge that may be used for a variety of theoretical and practical purposes. It embraces: the comparing of legal systems with the purpose of ascertaining their differences and similarities; the systematic analysis and evaluation of the solutions which two or more systems offer for a particular legal problem; and the treatment of methodological problems that arise in connection with the comparative process and the study of foreign law. One type of interest pertaining to knowledge and explanation in comparative law is associated with the traditional comparison de lege lata and/or de lege ferenda. Pursuant to this comparison are searches for models for the formulation of new legislative policies at a domestic, regional or international level. Comparative law can also be a valuable tool when courts and other authorities interpret and apply legal rules or are faced with the task of filling gaps in legislation or case law. However, when carrying out their tasks, comparative law researchers are often faced with vexing methodological problems. Some of these problems pertain to difficulties in establishing the so-called tertium comparationis – the common denominator between the legal rules or institutions under consideration that makes comparison possible. This paper examines some key aspects of comparative law methodology, with particular attention being paid to the normative-dogmatic and functional approaches to the comparability issue. It is submitted that, depending on the demands and goals of the particular research project, combining elements of these two approaches may provide a useful way of addressing some of the methodological challenges that arise in the context of comparative law research.