- Introduction
There are no generally accepted theoretical frames, established terminology or aims set in comparative study of law. Comparative law (or more broadly comparative legal studies) is a special field of legal research that is open to innovation and not cemented to any particular legal discipline. This means that one can study law comparatively in all areas of law, hence, there are fields like comparative contract law, comparative criminal law, comparative constitutional law etc.
Moreover, there are different methodologies available ranging from doctrinal to historical, economic to linguistic, computational to anthropological and so and so forth. As a result, comparative law is a broad field that lacks an established paradigm. Regardless, there are characteristic features in all types of comparative law research. The most important one is that comparative study of law focuses on similarities and differences between legal systems. More than that, comparative study of law needs to go beyond mere description of differences and similarities as it seeks to explain the reasons behind them.
It is important to note that the concept of legal system is understood in a broad manner as for the comparatist it may be formal state law, religious norms, non-national body of legal rules and principles like lex mercatoria, or indigenous law.[1] Accordingly, the methods of comparative law are various, and the field is in the state of methodological pluralism.[2]
- Comparative Study of Law
Regardless of the characteristic features there are also complications involved. Much depends on which kind of comparative law is referred to. For example, academic and practising lawyers see the meaning of law and legal research in diverse ways. In this text comparative law refers to a form of doing legal research. In essence, comparative law in this sense is an academic field of legal knowledge that studies law comparatively as a normative phenomenon of organised human communities. In essence, it is a shorthand for numerous ways to study and explain the differences and similarities between legal systems and legal traditions.[3] It is important to grasp that comparative legal research is done for a ‘number of purposes and the methodology and techniques used can differ according to these purposes.’[4]
Academically ambitious comparative legal research requires to step out of the narrow epistemological and methodological internal viewpoint of a lawyer. It has been pointed out that there are ‘benefits of learning from other related disciplines such as anthropology, sociology, history, linguistics, and philosophy’.[5] Comparative study of law requires placing the law in context and find out how law really works. This is not possible if one relies on doctrinal approach alone as legal systems are different: some systems rely on legislation others may rely more on precedents whereas some others rely on customs or religious norms. To that end, comparative study of law requires stepping out of the normative internal point of view of a lawyer. If one seeks deeper understanding of foreign legal systems, one needs ‘a comprehensive and interdisciplinary approach’.[6]
In sum, comparative study of law entails at least some form of interdisciplinarity if and when it seeks to go beyond what doctrinal study of law can methodologically offer. Laws that the comparatist studies exist in different contexts and the comparatist needs to try to conceive “law” more profoundly than by simply looking at legislation or case law. As Tamanaha puts it, law ‘swims in the social sea with everything else’.[7] Despite this it is not quite clear what interdisciplinarity actually means in comparative law.
- Interdisciplinarity
It is not always clear what it is meant by interdisciplinarity against the backdrop of comparative law. This is, at least in part, because it is close to multidisciplinarity and transdisciplinarity. Multidisciplinarity is about exceeding the disciplinary boundaries, but its goals are governed by the frameworks of fields of knowledge. Multidisciplinary study means typically that a team of researchers from different fields undertake research as they study the same question from different disciplinary angles. Transdisciplinarity concerns going over the boundaries of the disciplines as the essential ideal is the unity of all knowledge. Transdisciplinary research requires stepping outside the boundaries of disciplines as it is sought to mix different perspectives to grasp broad thematic issues. Interdisciplinarity, in turn, is a model of research where scholars inform each other’s perspectives and compare their research results through a transfer of knowledge. This requires crossing the disciplinary boundaries. From there it follows that interdisciplinarity commonly concerns the transfer of methods from one field of knowledge to another. Essentially, interdisciplinarity requires going over the disciplinary boundaries but remaining within the frameworks of disciplinary research. Interdisciplinary research seeks to integrate methods from various disciplines.[8] For the comparative study of law this integration is particularly relevant.
In order to be able to explain where the differences and similarities come from the comparatist must exploit sociological, economic, linguistic, empirical, political, and historical elements as part of their research. For example, it would be virtually impossible to explain why common law and civil law are different without relying on historical factors. To give another example, explaining why Turkey’s Civil Code (Türk Kanunu Medenisi 1926) that was transplanted from Switzerland (Zivilgesetzbuch 1907) works differently from its model would be impossible without taking the cultural and political contexts into account.
- Issues with Interdisciplinarity
Comparative law scholars who have been trained as lawyers need to be interdisciplinary to an extent. That much is clear. Notwithstanding, this does not make them into sociologists, anthropologists, or linguists. In most cases it is more about learning, benefitting and drawing inspiration from other disciplines and their methodologies. The key thing is that modern comparative law is a field open to interdisciplinarity. In essence, the modern comparatist ought to be at least satisfactorily conversant with the methods of other disciplines. Depending on the research problems this may mean relying on quantitative or qualitative methods used in sociology, anthropology, history, economics, or linguistics.
From the point of view of interdisciplinarity, it may appear surprising that quantitative methods have arrived only rather recently to comparative law. The present-day openness towards interdisciplinarity exposes comparative legal scholars to other disciplines that have been using quantitative approaches for a long time.[9] However, today it is more or less accepted that quantitative methods are a natural set of tools in the methodological toolbox of comparative law.[10] The growth of the cyberspace has made many sorts of data accessible providing more and more opportunities to new methods like, for example, computational approaches. Comparative law as a field is yet to find the opportunities that computational data creation, collection, and analysis techniques offer to the study of law.[11]
Interdisciplinarity in comparative law means, primarily, that the comparatist takes other disciplines seriously and abandons the pure normative point of view. This, in turn, may lead to fruitful relationship between disciplines and pave the way to deeper interdisciplinarity. For someone who ventures to research law comparatively it is advantageous to grasp that dimensions like history, politics, economics, religion, or language as they may enhance their research. This does not mean, nevertheless, that marrying comparative law with the methods and ideas of other disciplines would be a walk in the park.
Combining fields like history, linguistics and anthropology with comparative law seem feasible but doing the same with economic and sociological views may be more demanding.[12] And comparatists are still struggling to rely on quantitative methods even though in some fields, like comparative constitutional law and financial law, have been quite successful in combining quantitative and comparative approach.[13] Also in the area of comparative law and economics there is a significant amount of scholarship that keeps growing.[14]
- Conclusion
It seems evident that comparative legal researcher needs to study law in context in order to be able to study different legal systems and cultures comparatively. From there it follows that avoiding methods and ideas of allied but non-legal disciplines has become increasingly difficult. Accordingly, it has been suggested that if the researcher wishes to remain within doctrinal/purely normative inquiry they should not undertake comparative legal research at all.[15] This seems like a too drastic conclusion as the present-day pluralism and diversity of comparative law allows many kinds of approaches and theoretical orientations. There is no need for one-size-fits-all in the comparative study law. This conclusion is important from the point of view of comparative law itself as it confirms its openness towards interdisciplinarity and scholarly diversity.
* Jaakko Husa is Professor in Law and Globalisation at the University of Helsinki.
[1] See, eg, J Husa, Introduction to Comparative Law, 2nd edn (Hart Publishing 2023), M Siems, Comparative Law, 3rd edn (CUP 2022), U Kischel, Comparative Law (OUP 2019), G Samuel, An Introduction to Comparative Law and Method (Hart Publishing 2014).
[2] See R Scarciglia, Methods and Legal Comparison: Challenges for Methodological Pluralism (Edward Elgar Publishing, 2023).
[3] For different approaches and substantive areas of research, see J Husa (ed), A Research Agenda for Comparative Law (Edward Elgar Publishing 2024 forthcoming).
[4] E Örücü, ‘Methodologies for Comparative Law’ in J Smits et al. (eds), Elgar Encyclopedia of Comparative Law, 3rd edn (Edward Elgar Publishing 2023) 42, 48.
[5] P Giliker, ‘60 Years of Comparative Law Scholarship in the International and Comparative Law Quarterly’ (2012) 61 ICLQ 1, 18.
[6] A Peters & H Schwenke, ‘Comparative Law Beyond Post-Modernism’ (2000) 49 ICLQ 800, 832.
[7] B Tamanaha, ‘The Primacy of Society and the Failures of Law and Development’ (2011) Cornell Int’l L J 209, 247.
[8] J Husa, Interdisciplinary Comparative Law (Edward Elgar Publishing, 2022) 2-3.
[9] This is perhaps easiest to see in comparative constitutional law as it has connections to comparative study of politics. See eg Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (OUP 2014).
[10] R Whalen, ’Quantitative Methods in Comparative Law’ in Jan Smits et al. (eds), Elgar Encyclopedia of Comparative Law, 3rd edn (Edward Elgar Publishing 2023) 277-83. See also H Spamann, ‘Empirical Comparative Law’ (2015) 11 Annual Review of Law and Social and Science 131 and H Spamann, ‘Large-Sample, Quantitative Research Designs for Comparative Law?’ (2009) 57 Am J Comp L 797.
[11] See eg R Whalen, Computational Legal Studies: The Promise and Challenge of Data Driven Research (Edward Elgar publishing 2020).
[12] For a more detailed discussion, see Husa (2022) chapters 5 and 6.
[13] See, eg, Z Elkins, T Ginsburg, J Melton, The Endurance of National Constitutions (CUP 2009) and J Armour, S Deakin, P Lele, M Siems, ‘How Do Legal Rules Evolve? Evidence from a Cross-Country Comparison of Shareholder’ (2009) 57 Am J Comp L 579.
[14] See eg F Faust, ‘Comparative Law and Economic Analysis of Law’ in M Reimann & R Zimmermann (eds), The Oxford Handbook of Comparative Law, 2nd edn (OUP 2019) 826.
[15] Samuel (2014) 5.