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The Functional and the Dysfunctional in the Comparative Method of Law: Some

Critical Remarks
Antonios Emmanuel Platsas

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I Introduction
This article briefly explores the leading principle in the comparative method of law:
functionality of comparisons. It will be shown inter alia that functionality serves as a
common, unifying and mutually intelligible denominator amongst comparative lawyers
around the world, even though not necessarily in a dogmatic fashion. urthermore, both the
rise of the principle and its main criticisms will be noted. The article concludes that
functionality remains the epicentre of the comparative method of law and that its drawbac!s
remind us that the principle is susceptible to further refinement in the future.
##$, ##%, Ph&, #ecturer in #aw '(niversity of &erby). The usual disclaimer in relation to personal omissions
and errors applies.
Electronic Journal of Comparatie !aw, vol. *+., '&ecember +--.), http://www.e0cl.org
II Definition: Maintainin! the "rthodo#y
The vibrant heart of the comparative method
in the most dynamic
branch of law,
comparative law, dances to the tune of functionality of comparisons. $y all means, if there is
one principle that the method adheres to, it is functionality.
1ormally, functionality is indeed
referred to as a principle,
not as a method or a techni3ue. 4alling such a principle a 5method6
would present us with a clear paradox, a paradox which is to be avoided at all costs for the
sa!e of epistemological clarity: If comparative law primarily encapsulates a method, the
comparative method of law, then it cannot be superimposed on another method, the
5functional method6, for 7 arguably 7 such a thing as a sui generis functional method does not
At the very least, we can be certain that a comparative method occurs but it is not at all
certain whether, in turn, a functional method occurs. Therefore methodologically, and as a
matter of mere legal pragmatism, a comparative method is used, which guides the sub0ect of
comparative law under the principle of functionality. Thus, the principle of functionality
governs the comparative method of law and in turn the comparative method governs what we
generically call 5comparative law6.
9ith regard to defining functionality, especially as a tertium comparationis,
all that
can be said is that as long as in law things fulfil the same function, then they are normally

9ith regard to the choice for the 5orthodox6 definition of functionality, what can also
be said is that when a way of business wor!s, we should be sceptical of the introduction of a
new way of business< even more so when nothing viable is on offer as a new way of business.
Also, it is to be noted that such a definition is a particularly flexible one, by reason of the fact
that it is not formalistic or legalistic. In other words, the focus under functionality is not on
= >ahn?reund, Comparatie !aw as an "cademic #ub$ect '=xford 4larendon Press, =xford *@:8) 2. Also, #
4onstantinesco, %rait& de droit compar&, Aolume I '#.B.&.C., Paris *@;+) *;:?+-8< $D %ar!esinis, 'oreign
!aw and Comparatie (ethodology) a #ub$ect and a %hesis 'Eart Publishing, =xford *@@;) +8< > Fweigert and
E >GtH, "n *ntroduction to Comparatie !aw ',
edn =xford (niversity Press, =xford *@@.) +, ,2, ,: and CE
%erryman, %he !oneliness of the Comparatie !awyer '>luwer International, the Eague/#ondon/$oston *@@@)
*. 4f. % BraHiadei, 5The unctionalist Eeritage6 in P #egrand and I %unday 'eds), Comparatie !egal #tudies)
%raditions and %ransitions '4ambridge (niversity Press, 4ambridge +--,) *-*.
#ord Boff, 5The uture of the 4ommon #aw6 '*@@;) 2: I4#J ;28, ;2;?;2.. Dee also, more recently, B
Damuel, 5Epistemology and 4omparative #aw: 4ontributions from the Dciences and Docial Dciences6 in % Aan
Eoec!e 'ed), Epistemology and (ethodology of Comparatie !aw 'Eart Publishing, =xford and Portland
=regon +--2), ,8f and % Andenas and & airgrieve, 5Introduction: inding a 4ommon #anguage for =pen
#egal Dystems6 in B 4avinet, % Andenas and & airgrieve 'eds), Comparatie !aw +efore the Courts '$ritish
Institute of International and 4omparative #aw, #ondon +--2) xxvii. =n the 5march of comparative law from the
law libraries into the courts themselves6, as % reedland points out in the introduction to the last wor! see E
%uir 9att, 5=f Transcultural $orrowing, Eybrids, and the 4omplexity of #egal >nowledge: An Example of
4omparative #aw $efore the rench 4ourts6 and $ Iabatel, 5#iaison %agistrates: Their Iole in 4omparative
#aw $efore International Cudicial 4ooperation6 in B 4avinet, % Andenas and & airgrieve 'eds), ibid.
% >ii!eri, Comparatie !egal Reasoning and European !aw '>luwer Academic Publishers, &ordrecht +--*)
+. '3uoting > Fweigert, 5%ethodological problems in 4omparative #aw6, '*@;+) ; Israeli #aw Ieview, 2:8 and
A PiHHorusso, Corso di diritto Comparato 'BiuffrK, %ilano *@.,) ;@).
> Fweigert and E >GtH 'n *) ,2.
Ibid. 4f. I %ichaels and % BraHiadei6s approach on the matter, who argue in favour of a 5method6 as opposed
to the orthodox approach spea!ing of a principle. Dee % BraHiadei, 5The unctionalist Eeritage6 in P #egrand
and I %unday 'eds) 'n *) *--ff and I %ichaels, 5The unctional %ethod of 4omparative #aw6 in % Ieimann
and I Fimmermann 'eds), %he ,xford -andbook of Comparatie !aw '=xford (niversity Press, =xford +--:).
1ote that %ichaels admits that the term 5functional method6 can be a misnomer.
% $ogdan, Comparatie !aw '>luwer #aw and Taxation, &eventer *@@2) :-.
> Fweigert and E >GtH 'n *) ,2.
Electronic Journal of Comparatie !aw, vol. *+., '&ecember +--.), http://www.e0cl.org
what the formal re3uirements of the comparable in foreign law are but rather on how foreign
law operates in the area of law in 3uestion.
In close relation to this, Fweigert and >GtH argue
that the comparatist may often have to go 5beyond purely legal devices6 to see! functional
Accordingly, we should be scrupulous in our analysis as to why we should
proceed with the resurrection of other, now largely deceased, approaches. %ost certainly, with
all its drawbac!s, all its abstraction and peculiarities, functionality has served comparative
law circles well, especially when there is no clear alternative in sight. $esides, why should we
abandon the safest and 3uic!est way to comparative law in the absence of such an alternativeL
#ife itself points to functionality< why should we ever have a different approach in the
comparative method lawL BraHiadei is illuminating on this:
9e constantly resort to functional comparisons in daily life, to play, to wor!, to teach
and learn, and, yes, to communicate with people who share beliefs about the world
very different from our own.
=f course, there are other approaches
as to how to compare, but these, unli!e functionalism,
do not constitute a concrete methodological pattern in their own right.
4ontextual approaches
based on localisms here and there are not to be discarded
altogether in research but they are by reason of their peripheral character in the comparative
method not the main dish< in effect, they are mere side?orders. Accepting contextual
approaches to the detriment of functionality in the comparative method would be li!e
discarding the constitution of the method, when contextual approaches have only the
analogical effect of subordinate legislation to the method. Eence, at its heart the comparative
method hides a unified, overriding and powerful principle, the principle of functionality of
comparisons. (ltimately, however, the 3uestion of accepting other considerations to the
detriment of functionality in the comparative method is a 3uestion of ambition and agenda:
whose agenda is more undesirably ambitious
L The agenda of functionalist comparatists who
merely see! similars in the various 0urisdictions as a matter of practicality for their thinking
and working methods<
or the agenda of 5comparatists6 who want us to be something of a
functionalist, a sociologist, a historian, a political scientist and a contextualist at the same
4ertainly, as the latter 5comparatist6 is not a comparatist stricto sensu, the preference
Ibid ,2?,8.
Ibid ,8, ,..
% BraHiadei, 5The unctionalist Eeritage6 in P #egrand and I %unday 'eds) 'n *) **,, 3uoting C BMmar,
5Deven Pillars for the #egal Translator: >nowledge, >now?Eow and Art6 in D NarOeviP 'ed), !egal %ranslation)
.reparation for "ccession to the European /nion 'aculty of #aw, (niversity of Ii0e!a, Ii0e!a +--*) *** and
*+*?*+8. 4f. % Aan Eoec!e, 5&eep #evel 4omparative #aw6 in % Aan Eoec!e 'ed) 'n +) *;,.
Except for functional comparisons, there are also historical comparisons, evolutionary comparisons, structural
comparisons, thematic comparisons, empirical and statistical comparisons. Dee AA Palmer, 5rom #erotholi to
#ando: Dome Examples of 4omparative #aw %ethodology6 '+--2) 2 Blobal Curist rontiers +
T,&SaccessUo!UformRProcessing...V accessed * ebruary +--..
Ieferring to one such approach, the historical approach, BraHiadei calls it a 5tradition6. Dee % BraHiadei, 5The
unctionalist Eeritage6 in P #egrand and I %unday 'eds) 'n *) *--.
=n the 3uestion of ambition and unrealistic perfectionism in comparative law, Aan Eoec!e noted recently:
5Dtrong epistemological pessimism has a perfectionist view on understanding. If you do not fully understand
something, you do not understand anything. In practice this means that almost nobody can understand almost
anything. A rather frustrating conclusion, especially for those whose professional life is centred around teaching
and publishing6. Dee % Aan Eoec!e, 5&eep #evel 4omparative #aw6 in % Aan Eoec!e 'ed) 'n +) *;,.
> Fweigert and E >GtH 'n *) ,2.
E.g. P #egrand, 5Eow to 4ompare 1ow6 '*@@:) *: #D +,+, at +,: citing C #aw, 5Introduction: %onsters,
%achines and Dociotechnical Ielations in ibid 'ed) " #ociology of (onsters0)1 Essays on .ower, %echnology
Electronic Journal of Comparatie !aw, vol. *+., '&ecember +--.), http://www.e0cl.org
for the former is an obvious one. Again, to avoid misunderstandings, contextualism in
5comparative law6 is very welcome
indeed but the proposition is that this is to occur only
upon the recognition of the primacy of the principle of functionality in the comparative
>ahn?reund once said we will teach our students of comparative law to be proud and
we will teach them to be humble.
Eowever, if there is a division between functionalists and
contextualists in the comparative method, even though we are not sure who is the prouder, we
can without doubt be certain that contextualists are not as humble as functionalists. Their
excessively ambitious agenda 'stretching to almost anything in the theoretical disciplines)
causes great problems to theoreticians
as well as practitioners of comparative law, ma!ing
their approach not only unpopular but also wea! to the point of obsoleteness.
Academics such as Palmer are, therefore, correct in maintaining that 5to move into the
courtroom and into the halls of the legislature will re3uire methods which are not only
enlightening, but feasible and non?threatening.6
4onsider, for example, the complications
that a pro?hermeneutics !ind of a comparative method in law might result in. 1ot only is such
an approach threatening to the unsuspected 0udge or practitioner by reason of the pedantic
nature of such an approach but also to most comparatists or rather to mainstream
comparatists. In other words, why are we to adopt a pro?hermeneutics approach, when
practitioners would feel uncomfortable with it, in addition to the academic comparatists who
already feel uncomfortable with itL
The main problem which the contextualists have yet to satisfactorily address is not so
much whether we should see! the 5contextual whys6 in our method, if at all, but rather why
and how we should see! these 5whys6, especially when our primary purpose is comparing
e3uivalents per se. Then, it could be maintained that contextualists may argue in a felix qui
potuit rerum cognoscere causas fashion.
This may be acceptable but again function can be
detected without resort to the contextual 5why6, notwithstanding the fact that the felix qui
potuit rerum cognoscere causas may be the way for comparatists to shut themselves in the
proverbial ivory tower< thus, it is not necessarily the primary concern in comparing to detect
the 5why6. or example, if we compare cars on the basis of luxury and choose to purchase
something between a %ercedes?$enH and a $%9 of the same engine capacity, we may do so
without pedantically referring to the history of the two companies< indeed, we may not even
have to !now how long it ta!es for each car to be produced in the assembly lines, nor why it
ta!es so long, nor what it ta!es for the companies to actually produce a unit of each of the two
models under comparison.
9hy should we !now in comparative law the context of law,
when in life itself context 'as opposed to function) hardly comes into playL Alternatively, a
contextualist might wish us to focus our research on Aristotle6s first lesson, as %ar!esinis
and 2omination '#ondon *@@*) *..
$D %ar!esinis 'n *) +:. Also, % BraHiadei, 5The unctionalist Eeritage6 in P #egrand and I %unday 'eds) 'n
*) *-*< B Damuel, 5Epistemology and 4omparative #aw: 4ontributions from the Dciences and Docial Dciences6
in % Aan Eoec!e 'ed) 'n +) ,@ noting that 54oncepts and rules need to be contextualised within a range of
factual situations so that their function can become evident6 and % Aan Eoec!e, 5&eep #evel 4omparative #aw6
in % Aan Eoec!e 'ed) 'n +) *:;. 4f. % BraHiadei in the wor! stated in this note at pp. **-?***.
The 3uestion of function precedes that of context. Dee Iabel6s approach as described in A% Blendon, %9
Bordon and 4 =sa!we, Comparatie !egal %raditions '9est Publishing, Dt. Paul, %inn., *@@2) **.
= >ahn?reund 'n *) ,-.
E.g. Iabel6s approach 0ustified in the past that the practical needs override the need of the comparatist to refer
to philosophy or history. To this effect see $ %ar!esinis, Comparatie !aw in the Courtroom and Classroom
'Eart Publishing, =xford/Portland, =regon, +--2) *,.
AA Palmer 'n **) ,.
>ii!eri states 5culture6 based considerations are a matter of cognition. Dee >ii!eri 'n ,) ,,.
4f. BraHiadei 'n *:) *+8.
Electronic Journal of Comparatie !aw, vol. *+., '&ecember +--.), http://www.e0cl.org
calls it: rounded !nowledge 'in one6s discipline).
This too seems to be worthy of critical
scrutiny< this occurs by reason of the fact that even though in theory rounded !nowledge and
in our case a contextualist approach to comparative law is to be sought, in practical terms
5$eyond a certain point, narrowing one6s focus is essential in order to sharpen it.6
Also, the comparatist who see!s the contextual causes of his comparables may deviate
from his main tas!: comparing. =bvious as the point may be, comparing 'and contrasting) per
se is the primary tas! of the comparatist.
=n the other hand, comparing and contextualising
is acceptable, as long as the purpose of contextualising in the comparative method is defined.
The 3uestion that such a comparatist has to address is: in addition to comparing functionally
e3uivalents, why am I to additionally detect the contextual 5whys6 behind my comparablesL
%ore interestingly and in relation to this last point, however, some comparatists argue that the
contextual 5whys6 lead us to good comparisons. The problem with this point of view is that
these comparatists present us with no concrete method. It is not automatic that !nowing the
causes of comparables leads us to good comparisons. 4ontextualists as! from mainstream
comparatists to see! 5contextual whys6 but they fail to tell us, let alone convince us, why we
should embrace their approach. The same people who as! us to see! the whys in our method,
fail to concretely tell us why and how we should do so.
In short, if the comparatist is to compare, functionalism suffices< if he is to compare
and in a rather peculiar, if not pedantic fashion, to compare and to discover other things, e.g.,
mentalit&s in his comparables, he may have to resort to other tools of an extra?legal nature
'e.g., history, economics, politics).
$ %Incompara&les cannot usefully &e compared'
The comparatist will always be haunted by this memorable and magical expression:
5incomparables cannot usefully be compared6. It will puHHle our minds forever, for we are
see!ers of the truth, our truth being good comparisons or, to use professional 0argon,
5meaningful comparisons6 in the realm of law. Domehow, it could be argued, this expression
summarises our discipline. Eowever, simple and self?evident as the proposition may seem, we
cannot always readily detect the comparable. Wet the answer to our 3uestion is to concentrate
on the word 5usefully6. =ther comparatists have described 5usefully comparable6 as
sufficiently comparable, reasonably comparable, fruitfully comparable or meaningfully
In essence, the compromise reached in comparative law is that normally
comparables have to be governed by a denominator of usefulness.
or Fweigert and >GtH things that are essentially usefully comparable are ones which
fulfil the same function.
Even though this is largely true, at other times we may wish to base
our analysis on use, a telos, a purpose in the employment of functionality.
III Functionality Is *ased on the +ssence and the Telos of Compara&les
=n this 'though in a different context) see $D %ar!esinis 'n *) +8.
AA Palmer 'n **) +.
%ost certainly, Aan Eoec!e is correct in arguing that the 5comparative lawyer is lost6 in this respect. Dee %
Aan Eoec!e in % Aan Eoec!e 'n *:) *:;.
> Fweigert and E >GtH 'n *) ,2.
E XrYcY, %he Enigma of Comparatie !aw '%artinus 1i0hoff Publishers, #eiden/$oston +--2) +@.
> Fweigert and E >GtH 'n *) ,2.
Electronic Journal of Comparatie !aw, vol. *+., '&ecember +--.), http://www.e0cl.org
In my own teaching of comparative law I have often felt that, li!e $agehot6s monarch,
I had a duty to warn and a duty to encourage. To teach students not to be lured by
homonyms and not to be afraid of synonyms.
In principle, comparing one thing to any other thing is possible,
though in all probability not
very useful unless, of course, the purpose of such an endeavour is defined from the outset.

Academics are somehow divided on the matter. BraHiadei, for instance, has criticised as naZve
the approach that 5it is possible to compare the incomparable.6
XrYcY, on the other hand,
successfully argues, however, that 5Even identicals must be compared in order to determine
that they are in fact identical.6
Even so, the fact that something is readily permissible in
science and more generally in life does not always ma!e it a preferable option. In the
comparative method this is the approach ta!en. The method6s comparisons have to be dictated
by some sort of unifying language of application< by some common denominator. =bviously,
different ob0ects may have different functions but as XrYcY argues 5all things are comparable
even if unique.6
Indeed, there must be an infinite number of comparisons in abstracto in life.
$ut as in the real world, what matters in the exciting microcosm of the comparative lawyer, is
that he reaches comparisons that are not only valid but that they serve some purpose. In
Academia the name of this purpose is called !nowledge,
or at least the pursuit to reach it. In
the national legislatures the name of the purpose can be law reform, whereas in legal practice
such a purpose may be enhanced !nowledge of legal solutions in other legal systems.
It is 5li!e for li!e6 'similia similibus) that normally suffices in comparing.
as will be seen below, sometimes atypical comparisons may suffice for the purposes of the
comparative method.
1ames in comparisons do not matter a great deal. Eomonyms may not always offer us
5meaningful6 comparisons. Eowever, the opposite is also true: apparently disconnected
notions, concepts or areas of law may well be relevant to each other as a matter of a
$ut synonyms are not always to be discarded as a starting point for comparison.
In this regard, the pairs of comparison Aan Eoec!e offers in a recent wor! are particularly
Do, for instance, the terms 5*nterpr&tation 7 Interpretation or 4onstruction 7
"uslegung6 respectively in rench, English and Berman are a perfectly valid comparative trio
'all words basically refer to the same intellectual activity).
Dimilarly, the terms 5Contrat or
Conention 7 4ontract 3 4ertrag6 refer to the same sub0ect matter 'all words basically refer to
the same reality).
These are therefore prima facie comparable concepts, even though one
must state for the sa!e of balanced argument that the contract laws of rance, Bermany and
England do not necessarily coincide in remit, approach and typology with one another.
$ Comparer des pommes avec des oranges and apples to oran!es,
= >ahn?reund 'n *) *@.
E XrYcY 'n +.) *@.
E.g. EE 4hodosh, 54omparing 4omparisons: In Dearch of %ethodology6 '*@@@) .2 Iowa #aw Ieview *-+8,
% BraHiadei 'n *:) *-8.
E XrYcY 'n +.) *@. Emphasis added.
> Fweigert and E >GtH 'n *) *8.
E XrYcY 'n +.) +-.
% Aan Eoec!e in % Aan Eoec!e 'n *:) *;8.
Electronic Journal of Comparatie !aw, vol. *+., '&ecember +--.), http://www.e0cl.org
An idiom which has captivated the English?spea!ing world as well as significant parts of the
rench?spea!ing is the one which as!s people not to compare apples and oranges, they being
different in essence. 5This response implies, first, that apples and oranges are incomparable,
and, second, that the incomparability of apples and oranges is itself comparable to the
incomparability of the two ob0ects in the primary comparison.6
This problem has been dealt
with and its proposition of incomparability has been proved to be a false one in the past
arguably, comparing a red apple with an a green apple, when one see!s to distinguish the
colour 3uality of redness between the two does not ma!e particular sense< yet if one compares
an apple with an orange when one see!s to compare their nutritional 3ualities, this should
arguably ma!e good sense. This is very much true, as in the former case, we know a priori
that by definition a green apple has no 3ualities of redness< such a comparison is therefore
obsolete, as it would stress differences only, notwithstanding the fact that it would miss the
point of our comparison: the redness between two normally similar artefacts 'similia
similibus doctrine). In the latter case, however, things are considerably more interesting< here,
we have two 5different6 fruits, both of which, however, are spheroid, tasty, and belong to the
same scientific !ingdom, division and class 'plantae, magnoliophyta, magnoliopsida
respectively). Wet, there are differences, and the differences outweigh the similarities between
the two: apples are normally less bitter than oranges, though oranges can be sweet< apples are
normally never orange and oranges normally never red< so too, apples and oranges do not
share the same scientific order 'rosales and sapindales respectively)< hence they cannot be
part of the same family 'rosaceae and rutaceae respectively) and indeed cannot be part of the
same genus 'malus and citrus respectively). In other, scientific words, they are different
species 'malus domestica and citrus sinensis respectively). (ltimately these are two different
artefacts with different nutrition 3ualities. 9here does all this leave us in lawL
In law things are broadly similar. And even though the author of this article wishes to
maintain that it is normally directly similar ob0ects which should be compared, at other times
the focus need not be on the essence of the things compared so much as on the purpose of
comparison of two or more 5different6 artefacts.
That is not to say that broadly similar
artefacts cannot and should not be compared< on the contrary, it would seem that in such cases
comparisons are often not only less arduous but also more readily available. Theoretically,
any law could be compared with any other law, if some common denominator of a valid
comparison is found< yet the tendency 7 it would seem 7 in the comparative method of law is
that we compare 5corresponding6 areas of law or what is called 5comparison of e3uivalents6.

=n the other hand, it would be an omission not to state that confining purposes of
comparisons effectively amounts to the confining of tools in the comparative method. That
said, the comparative method can be a largely sub0ective exercise. In turn, sub0ective purposes
of comparison may well result in sub0ective tools to pursue such purposes.
EE 4hodosh 'n ,+) *-:*?*-:+.
EE 4hodosh 'n ,+) *-:*?*-:, citing CE %erryman, 5Eow =thers &o It: The rench and Berman Cudiciaries6
'*@..) :* Douthern 4alifornia #aw Ieview *.:8< also, 4A Iogers, 5Bulliver6s Troubled Travels, or the
4onundrum of 4omparative #aw6 '*@@.) :; Beorge 9ashington #aw Ieview *2@, *8-?*8*, *:,.
4 &eligianni?&imitra!ou, Eisagogi sto #yncritiko 2ikaio 'E!doseis Da!!oula, Thessaloni!i *@@;) +2.
> Fweigert and E >GtH 'n *) ,:.
& >o!!ini?Iatridou, 5Dome %ethodological Aspects of 4omparative #aw, The Third Part of a 'Pre?)
Paradigm6 '*@.:) 1etherlands International #aw Ieview *8.ff. %ar!esinis considers this a 3uestion of
predilection. Dee $D %ar!esinis 'n *) +8.
Electronic Journal of Comparatie !aw, vol. *+., '&ecember +--.), http://www.e0cl.org
* Comparin! areas other than in su&stantive law -forms. techni/ues. styles0
Iegardless, we may be tempted to consider the following. #et us argue that the legislator of
Iuritania, for instance, is in pursuit of modernising its intellectual property law as a matter of
form rather than as a matter of substance. In doing so, it wishes to refer to rench law.
Eowever, in referring to comparative law material, the legislator of Iuritania, a common law
country for the purposes of our example, wishes to refer to the 4ivil 4ode of rance 'as
opposed to rench intellectual property law). The legislator made this choice, because it is in
pursuit of the 5fresh and flexible6 spirit
of the rench 4ivil 4ode as a matter of form,
that this is incorporated in the Iuritanian Act to be drafted, even if such an act deals with
intellectual property rather than civil law, as the rench 4ivil 4ode does. 4an the legislator do
soL Dhould it do soL This is open to argument but XrYcY offers us the following provo!ing
4ould we not compare, for example, an English statute on taxation, town and country
planning or matrimonial causes with three pieces of Berman legislation on entirely
different topics if we were trying to establish how such documents are prepared and
how long or detailed they are in order to develop an understanding of such a source of
lawL The examples could be infinite.
4onse3uently, with regard to the identification of 5functionality6 there are two variants
here: The one variant suggests that Iuritanian intellectual property law and rench civil law
do not share the same function 'i.e., they are not functionally e3uivalent), not only because
Iuritanian legislation uses verbose and old?fashioned language, whereas rench civil law uses
flexible and fresh language, but also 'and most importantly) because these statutes belong to
different substantive areas. =ur comparison 7 technically spea!ing 7 is an invalid one.
Alternatively, however, we can argue that both the Iuritanian statute on intellectual property
and the rench civil code share the same function as a matter of a law reform exercise, even if
the fact of the matter remains that the Iuritanian law to be reformed and the rench civil code
to be compared with belong to different substantive areas of law. Either way, the result is an
unsatisfactory one, for in the former case we should not proceed 'when we can as a matter of
form) with our comparison for absence of substantive provisions, whereas in the latter case
we would have to go to great lengths to imply functionality on the basis of form 'as opposed
to a functionality of substance which is the established approach to date). If, however, the
latter approach is followed, then clearly it is all about the purpose of comparisons which
ma!es functionality reveal itself.
The telos therefore is the ultimate 0udge of comparisons. This notion of telos connects
well with the approach ta!en under mainstream comparative law, i.e., the comparative lawyer
is a person who engages in comparison for a purpose.6
It also connects well with the
approach ta!en under mainstream functionality, i.e., 5unctional in3uiry also suits the
> Fweigert and E >GtH 'n *) @-, @*, *-- S *28. Fweigert and >GtH praise the Code Ciil with the following
expressions: 5The 4ode civil avoids the danger of being too detailed [often been praised for its clear and
memorable phrases, and for avoidance of cross?references and 0argon [its language \is] forceful and thrilling,
free from heavy logic and detailed digression. In rance [ordinary citiHens may have a feeling of warm
affection, of closeness to their 4ode6.
% $ogdan, Comparatie !aw '>luwer #aw and Taxation, &eventer *@@2) 8;ff.
E XrYcY 'n +.) +-.
A Iiles, 5Introduction6 in A Iiles 'ed), Rethinking the (asters of Comparatie !aw 'Eart Publishing, =xford
+--*) **.
Electronic Journal of Comparatie !aw, vol. *+., '&ecember +--.), http://www.e0cl.org
utilitarian approach to comparative law.6
Eowever, even though telos and utility are not
3uite exactly synonyms, the comparatist is free to define purposes and utility for his method.
In this respect, even though functionality is to this day the leading thesis, there is no
restriction to the comparatist6s research, as long as, of course, his purpose of research
defined and such purpose bears connection with certain needs, especially practical needs. The
stress is on practicality because 5In law, ideas and notions that cannot be put to practical use,
are li!ely to satisfy only those who spend their time devising them and then 3uoting each
other with self?satisfaction.6
I1 Functionality in Its Manifestations
Except for the manifestation of functionality as a tertium comparationis in the comparative
method of law, functionality, especially in the wider confines of comparative law as a whole,
can be said to be a polysemantic concept, a concept with many functions.
Deven distinct functions of functionality are recognised in comparative law.
Thus, in
addition to the tertium comparationis function, there are the epistemological function of
functionality, the presumptive function 'as in the praesumptio similitudinis), the formalising
function in the building of a system, the evaluative function 'as a determinant of the 5better
law6), the universalising function and, finally, the critical function.
1 Functionality Serves the Identification of *oth Differences and Similarities
=ne experiences a singular repugnance to thin! in terms of difference, to describe
discrepancies and dispersions.
$ecause we cannot always be sure as to what amounts to a similar or a dissimilar in law, what
the exact methods to define such terms are and whether the assessment of the similars and the
dissimilars should be done in 3ualitative or 3uantitative terms or even in a sub0ective or an
ob0ective fashion, we must consider that in principle the identification of both differences and
similarities should suffice for a comparative exercise as a whole. Also, it is to be noted that 5It
goes without saying that comparative analysis will bring out the differences between actual
Wet the comparatist is interested in proceeding with a wor!able solution for his
discipline 7 not to en3uire in perpetuum into 3uestions of philosophy, at least not for practical
purposes. In this respect, we must admit that the assumption of the *@-- Paris 4ongress
still correct, i.e., it is similar things which are normally to be compared. In fact, in modern
legal interpretative scholarship the emphasis is on the identification of similarities rather than
differences between legal systems.
%ore interestingly, even international social theory
stricto sensu suggests that the 5aim of cross?national research is to reduce unexplained
E XrYcY 'n +.) +@.
Though on the context of comparing cases, Damuel as!s that one6s ob0ect of comparison 'or what is called
herein 5purpose of comparison6) is defined. Dee B Damuel in % Aan Eoec!e 'n +) ,;.
$ %ar!esinis 'n *@) 8,.
I %ichaels, 5The unctional %ethod of 4omparative #aw6 in % Ieimann and I Fimmermann 'eds), %he
,xford -andbook of Comparatie !aw '=xford (niversity Press, =xford +--:).
oucault as 3uoted in P #egrand, 59hat ^#egal Transplants_L6 in & 1el!en, and C eest 'eds), "dapting !egal
Cultures, 'Eart Publishing, =xford +--*) :;.
> Fweigert and E >GtH 'n *) 2,.
E XrYcY 'n +.) +-.
Electronic Journal of Comparatie !aw, vol. *+., '&ecember +--.), http://www.e0cl.org
variance and find patterns and relationships.6
E3ually, it should be remembered that 5to
accept comparability is, however, not the same as accepting similarity: the comparison can of
course demonstrate great fundamental differences.6
9ithout doubt, however, it is the
identification of similarities that is more important to functionality 'and hence comparability
as a whole). This is true by reason of the fact that we should search for equialents in the
comparison embar!ed upon. To do so, we must normally be 5freed from context6 and 5the
solutions \to the same problem] we find in different 0urisdictions must be cut loose from their
conceptual context and be stripped of their national doctrinal overtones.6
The good comparatist will spea! of the possible in his method, the better one will
spea! of the desirable in his method. =f course, as already maintained, comparisons can be
It is possible as a matter of theory for one to compare any law to any other law. Is
this desirableL Arguably, the example of the Iuritanian reformer is another blow to the strict
application of the principle of functionality. Wet the fact that something is possible should not
always ma!e it a desirable phenomenon. Again, the dichotomy of academic comparatists is a
matter of agenda: do we want in Academia comparatists who would be practice?oriented
minds and concentrate on similars in their comparative pro0ects or do we want comparatists
whose wor! bears little relevance to practical needs but who are free to compare anything to
anything even for the sa!e of identifying differences in the mainL The author of this paper
consciously opts for the former class of comparatists. Practical needs in comparative law by
far override theoretical ones. Durely, this choice does not mean that a comparison of
differences cannot be pursued, but even this has to bear relevance to practicality.
Effectively, whether functionality should stress similarities more than differences
reminds us of Dchlesinger6s 3uestion between 5integrative6 and 5contrastive6 comparative
Integrative comparative law stresses the similarities amongst legal systems< contrastive
comparative law stresses the differences amongst legal systems. Dchlesinger has maintained
that whilst the contrastive approach has found its way well into the second half of the +-

century, he notes that 5in the last two or three decades the pendulum has again
began to
swing the other way6,
i.e., the discipline has now reverted bac! to what is seen as the *@--
thesis. Dchlesinger was convinced that the future of comparative law belonged to the
integrative approach.
It must therefore be stressed that the importance of similarities in
comparative law might be the conscious or even unconscious expression of the idea that the
world is shrin!ing< that the interdependence of national economics 'and therefore the
interdependence of legal systems) becomes day?by?day more prevalent< and that ultimately
there exists unity of thought 'and by extension unity of legal thought) in the human race, as
Eegelian idealism
I 4otterrell, 5Dee!ing Dimilarity, Appreciating &ifference: 4omparative #aw and 4ommunities6 in A Earding
and E XrYcY 'eds), Comparatie !aw in the 56
Century '>luwer #aw International, the Eague +--*) ,..
C Bould and 9# >olb 'eds), " 2ictionary of the #ocial #ciences 'Tavistoc! Publications, #ondon *@:2) **:.
%ore recently, E `yen, 5The Imperfection of 4omparisons6 in E `yen 'ed), Comparatie (ethodology) %heory
and .ractice in *nternational #ocial Research 'Dage, #ondon *@@-) *, ,.
% $ogdan, Comparatie !aw '>luwer #aw and Taxation, &eventer *@@2) +*.
> Fweigert and E >GtH 'n *) 22.
E XrYcY 'n +.) *@.
I$ Dchlesinger, 5The Past and uture of 4omparative #aw6 '*@@8) 2, American Cournal of 4omparative #aw
Emphasis added.
I$ Dchlesinger 'n :,) 2;@. Dee also % Aan Eoec!e in % Aan Eoec!e 'n *:) *;+.
I$ Dchlesinger 'n :,) 2.*.
E.g. I$ Pippin, -egel7s *dealism) the #atisfactions of #elf8consciousness '4ambridge (niversity Press,
4ambridge *@.@).
Electronic Journal of Comparatie !aw, vol. *+., '&ecember +--.), http://www.e0cl.org
1I Functionality as a Common Intellectual Denominator of Le!al Thou!ht
9e are in the habit of positing a single orm for each plurality of things to which we
give the same name.
In relation to the point raised in the last paragraph, Plato teaches us in his theory of 5one?over?
many6, a sub?theory of his theory of the forms, that human thought is unitary in essence< yet
the implementation of the 2enken might differ in practice. According to this Platonic
doctrine, when we spea! of, for example, horses, we may spea! of a blac! horse, a brown
horse and a white horse. 9e may argue that a horse is strong and beautiful and that another
horse is wea! and unattractive. 9e may perceive different 3ualities and surrounding notions
'in our case colours and exoteric 3ualities of horses) in a different and sub0ective fashion but
ultimately we spea! of essentially the same thing: the species of horses. or Plato the
manifestations of the different did not matter so much, as he was convinced that a unitary,
eternal, indivisible and unchangeable essence is found beneath variable 3ualities of the same
All points to the idea of the one. 9ith regard to law, the theory of 5one over many6 is
very much relevant to the law convergence thesis, a !ey area of what we generically call
5comparative law6.
9ith regard to functionality the thesis here is as follows. Even though functionality in
comparative law does not necessarily pertain to the Platonic belief that there is unity of
human thought in abstract terms 'except perhaps where the praesumptio similitudinis is
apparently applicable), there is relevance of functionality in modern comparative law with the
Platonic idea of one?over?many in that both see! similarities in the main. Thus, the scratching
for useful comparisons should probably pertain to the scratching of similarities in the main, as
functionality actively loo!s for unitary elements of thought rather than things that serve
different purposes. In turn, functionality, so it could be argued, aims at the discovery of unity
of comparable purposes, purposes which otherwise come in agreement with the Platonic
belief in a favour of a unity of human thought 'Platonic =ne).
#et us now argue why the above might be true. irst of all, >ahn?reund6s thesis of 2-
years ago still holds true:
=ne of the lessons comparative law has to teach is that even within one orbit of
civiliHation social needs may in one country be served by legal rules and decisions and
in neighbouring country by techni3ues of what Pound calls 5social engineering6 which
are 3uite outside the law.
Plato, %he Republic, 8@:a.
=n this see Plato6s theory of the forms. The characteristics and functions of the forms according to Plato are: i)
unchangeable '.haedo, ;.c*-?d@), eternal '.haedo, ;@d+), intelligible, not perceptible '.haedo, ;@a*?8), divine
'.haedo, .-a,, b*), incorporeal 'passim), causes of being '5The one over the many6) '.haedo, *--c), are
un3ualifiedly what their instances are only with 3ualification '.haedo ;8b).
= >ahn?reund 'n *) ++.
Electronic Journal of Comparatie !aw, vol. *+., '&ecember +--.), http://www.e0cl.org
Decond, but in close relation to what >ahn?reund argued earlier, there is the Fweigert and
>GtH6s thesis: the praesumptio similitudinis, according to which there is a presumption of
similarity of practical legal results amongst different legal systems.
Accordingly, the
comparatist normally discovers and realises that methods, techni3ues and approaches vary in
domestic laws< practical results are broadly similar.
4ertainly, it must be observed that this
presumption is not boundless, for such a presumption is not un3ualified< as the fathers of the
concept agree such extensive areas of law as law related to moral values, the law of
succession or family law are automatically excluded from an endeavour in finding the
Third, in our world of globalisation, it is fair to argue that different legal
systems bear more resemblances to one another than to their own history.

The idea of convergence, especially through the means of functionality, has been
attac!ed. #egrand, for instance, has argued that comparative law should not be seduced by the
idea of uniformity< it should rather support the 5contrarian challenge6.
4omparative law as
an academic sub0ect should be strongly attuned to diversity.
Wet, such a thesis is flawed.
Ieality dictates otherwise.
=ne is not sure first of all why functionality should not pursue
e3uivalents and ultimately similars and second but most important, whether in finding such
similars why not pursue convergence.
A poet once argued that 5a difference [in everything !eeps us apart6. This is very
much true in life and also in law, as for instance American anti?trust laws might be different
and perhaps more effective than anti?trust legislation in another country, only that it would be
haHardous to claim that because implementation of the same legal purposes differs, therefore
purposes are different and thus functionality is irrelevant in comparative legal analysis.
Indeed, the comparative lawyer, though stric!en from the range legal, social, cultural,
economic, religious and political bac!grounds in his endeavours to reach valid comparisons,
has always been reminded that national legal methods might vary but end results or legal
purposes not necessarily so. 5oreign law is not very different from ours but only appears to
be so.6
Also, from a practical point of view, 4urran is right to point that a 5hypersensitivity
to difference [can become a liability when the comparatist also is a law?ma!er or is
preparing to advise law?ma!ers.6
It is a wholly different matter, a matter which does not
touch the core of functionality, whether the effectiveness of different national tactics on the
purpose of the same legal results reaches different levels of effectiveness. The fact that
business laws in system a are more effective and result in a more thriving economy than the
> Fweigert and E >GtH 'n *) 2-.
Ibid. Also, E >GtH, 5The Trento Pro0ect and its 4ontribution to the EuropeaniHation of Private #aw6 in %
$ussani and ( %attei 'eds), %he Common Core of European .riate !aw '>luwer #aw International, the
Eague/#ondon/1ew Wor! +--,) +*+. >GtH characteristically states that 5the \praesumptio similitudinis] is a
rebuttable presumption, and rebutted it must be when there is evidence for doing so.6 or indicative criticisms to
the praesumptio see e.g. A Eunt, %he #ociological (oement in !aw '%acmillan, #ondon *@;.) 8, and E
4ollins, 5European Private #aw and the 4ultural Identity of Dtates6 '*@@8) , European Ieview of Private #aw
,8,, ,8,?,:8.
# riedman, 5$orders: =n the Emerging Dociology of Transnational #aw6, '*@@:) ,+ #tanford Journal of
*nternational !aw :8< 54omments on Applebaum and 1ottage6 in C. eest and A. Bessner 'eds.), %he
.roceedings of the 5
,nati Workshop on Changing !egal Cultures '=nati Institute, Dpain, *@@.), pp. *,@?*2@.
P #egrand 'n *8) +2+.
P #egrand, !e 2roit compare 'Presses (niversitaires de rance, Paris *@@@) ,+?2@.
B Alpa, 5oreign #aw in International #egal Practice6 in B 4avinet, % Andenas and & airgrieve 'eds) 'n +)
$D %ar!esinis 'n *) 2*.
AB 4urran b6=n the Dhoulders of Dchlesinger: The Trento 4ommon 4ore of European Private #aw Pro0ect6
'+--+) + 9lobal Jurist 'rontiers . as 3uoted in E XrYcY 'n +.) +;.
Electronic Journal of Comparatie !aw, vol. *+., '&ecember +--.), http://www.e0cl.org
functionally e3uivalent laws and the economy of system F should not negate comparative
efforts, even though it might be argued 'especially from the law reformer6s point of view) that
the laws of a are an example to be followed and the laws of W an example to be avoided.
As stated above, we do not have to be comparatists to realise that our world is
shrin!ing. In fact, close to Plato6s unity of thought appeal, humanity realises day by day that
the things which unite us are more than the ones which divide us. 5There is no such thing as
^Berman_ physics or ^$ritish_ microbiology or ^4anadian_ geology.6
The obvious 3uestion
which has to be answered then is if !nowledge and science as a whole are unconfused,
indivisible and inseparable, why should there be separate national laws in non?culturally
specific areas of law 'as opposed to single convergent laws)L It therefore ma!es little sense in
law to stress differences, when differences are the direct offspring of a nationalist and
parochial approach to law. inally, let it also be borne in mind that it is a more demanding
tas! to identify similarities 'and hence pursue legal unity) in comparative law research than it
is to identify differences, which largely occur by reason of the very division of legal systems.
1II The Dysfunctional in Functionality
1onetheless, the principle of functionality in the comparative method of law is not exactly
free from defect. Iather li!e the high level of abstraction and generalisation in 4ontinental
legal systems,
we cannot be absolutely certain how functionality in abstracto can always
serve practical needs and how this guiding principle can be applied in practice. In fact, there is
no such thing as a concrete guide as to what can actually be compared with what, e.g., in
0udicial matters.
Thus, the first ma0or problem with functionality is the fact that it is more of an abstract
notion than a practical guide on how to compare. E3ually, it may be argued that this is the
case as such a powerful principle has been literally bred and born in law Academia 'as
opposed to legal practice). Wet the inescapable fact is that what may seem theoretically
obvious may not seem as obvious to practitioners. And even though functionality seems to act
as a liberating device for the legal scholar, the same notion may initially distance the
practitioner from comparative law.
Another criti3ue against functionality seems to suggest that its presumptive and
universalising function may ta!e away from comparative law all that is interesting
about it.
ran!enberg has once argued that 5The claim to universality forbids 3uestion of the purity of
\the comparatist6s] motives, the ob0ectivity of her methods, or the correctness of her results.6
Eowever, this is highly arguable. or one thing, functionality is not necessarily abortive of
> Fweigert and E >GtH 'n *) *8. The thesis of the unity of science comes in agreement with the modern
Aienna 4ircle of philosophy. or writings on the unity of science see e.g. # von $ertalanffy, 5An =utline of
Beneral Dystem Theory6 '*@8-) *:+ $ritish Cournal or the Philosophy of Dcience *,2, *,2?*:8< P =ppenheim
and E Putnam, 5(nity of Dcience as a 9or!ing Eypothesis6 '*@8.) + %innesota Dtudies in the Philosophy of
Dcience, ,?,: as reprinted in I $oyd, P Basper and C& Trout, %he .hilosophy of science, Cambridge '%IT
Press, %ass./#ondon *@@*) 2-8?2+;. 4f. C odor, 5&isunity of Dcience as 9or!ing Eypothesis6 '*@;2) +.
Dynthese ;;, reprinted as 5Dpecial Dciences6 in $oyd and others in the wor! stated in this note at pp. 2+@?22* and
more recently, C odor, 5Dpecial Dciences: Dtill Autonomous After All These WearsL6 '*@@;) ** Philosophical
Perspectives *2@?*:,.
> Fweigert and E >GtH 'n *) ,;.
=n this see e.g. 4E %c4rudden, 5A 4ommon #aw of Euman Iights: Transnational Cudicial 4onversations on
4onstitutional Iights6 '+---) +- =C#D 2@@.
A% Blendon, %9 Bordon and 4 =sa!we 'n *;) *+.
B ran!enberg, 54ritical 4omparisons Ie?thin!ing 4omparative #aw6 '*@.8) +: -arard *nternational !aw
Journal 2+2. %ore recently, see generally P Fumbansen, 54omparative #aw6s 4oming of Age: Twenty Wears
after Critical Comparisons6 '+--8) : 9erman !aw Journal *-;,?*-.2.
Electronic Journal of Comparatie !aw, vol. *+., '&ecember +--.), http://www.e0cl.org
contextual approaches< for another, most mainstream comparatists wish to ma!e some
allowance for contextual inroads to functionality. In this respect, such criti3ue can be
3uestioned. In relation to ran!enberg6s point, it could perhaps also be argues that his
approach clearly goes against the more traditional Daleilles *@-- thesis 'emphasis on the unit&
des r&sultats dans la diersit& des formes $uridiques d7application).
Iecently, it has been argued that functionality may bring about a presumption of a
common epistemological understanding of what is meant by 5law6 between legal systems.

This approach clearly approximates the problem of functionality as a universal apparatus of
cognition of problems and solutions. The problem is in a sense exacerbated by reason of the
fact that there is a multiplicity of legal systems and that for all the ubi3uitous character of the
comparative method, there is no agreement amongst comparatists as to what amounts to 5law6.
Also, a last criti3ue towards functionality can be launched against its presumptive
character 'and together with it against its universalising character). Eere, the problem is not so
much whether the praesumptio similitudinis always occurs or not, but rather whether this
actually represents 5ideological neutrality6 on the part of the forefathers of such a
presumption. As for whether the presumption is a rebuttable presumption, >GtH has recently
made it clear this is 5a rebuttable presumption, and rebutted it must be when there is evidence
for doing so.6
Do, for instance, the more culture?specific the area of law, the more onerous it
is for the comparatist to detect functional e3uivalence. It is 3uestionable, however, whether
the strict language used in the definition '5\the comparatist] should be warned and go bac! to
chec! again whether the terms in which he posed his original 3uestion were indeed purely
functional, and whether he has spread the net of his researches 3uite wide enough6
) is free
from ideology. To this there can be no definitive answer. or one thing, similarities between
legal results in the various 0urisdictions can indeed be detected< for another, the fact that >GtH
has come to slightly water down his earlier, strict approach may lead us to thin! that the
presumption is not so much a matter of ideology but rather a common?sense, empirical rule, a
rule that appeals to the legal senses. If this is true, we can in turn rebut the presumption that
the universalising character of functionality is of an ideological nature 'as opposed to an
epistemological nature).
$ $n e#pansive principle
Ieaching the last area of criti3ue concerning functionality, all that could be said is that
functionality6s very strength emanating from its expansive nature in comparative law as a
whole is its very wea!ness. 4omparative law 7 it would seem 7 has a more expansive
approach when it comes to functionality than any other discipline. Even though its tertium
comparationis function is understood to be the most central to comparative law, as we !now
it, the other functions with which it comes simply cannot be ignored. In this respect, we must
ac!nowledge that functionalism in comparative law is convoluted and that %ar!esinis6 call is
still a contemporary one 'even though some things in relation to this have improved) 7 our
discipline is still in search of an audience,
and functionality is worthy of further
simplification or rather refinement. It is expected that this will breathe new life into the
theoretical part of the discipline and will further familiarise interested parties 'e.g., 0udges,
practitioners, reformers) with the practical nature of the sub0ect.
I Daleilles, 54onception et ob0et de la science du droit comparM6, in Congr:s international de droit compar&.
.roc:s erbaux * '*@-8), *:;, *;, and *;..
B Damuel in % Aan Eoec!e 'n +) :*.
E >GtH in % $ussani and ( %attei 'n ;,) +*+.
> Fweigert and E >GtH 'n *) 2-.
$D %ar!esinis, 54omparative #aw in Dearch of an Audience6 '*@@-) 8, (!R *.
Electronic Journal of Comparatie !aw, vol. *+., '&ecember +--.), http://www.e0cl.org
1III Conclusion
To conclude, even though the leading thesis in the comparative method should be ta!en to be
that of 5functional e3uivalents6, at other times the comparatist may well benefit from
specifying the purpose of his comparisons. unctionality, however, is a flexible notion, not an
arteriosclerotic one. It liberates the comparatist< it does not restrict him. Expansive and
embracing as the principle is, we cannot disregard the fact that it can pertain to the
identification of both differences and similarities, yet it would be negligent not to stress that
functionality reminds us that there ultimately is unity of thought in the human race, that
despite different approaches of peoples and legal systems, problems, solutions and end results
are largely similar. or that reason, the universalising character of functionality cannot be
ignored. To be sure, there are disadvantages, but the advantages by far exceed them.
%ost importantly, in the almost complete absence of a concrete and hence a iable
alternative to the much?abused notion of functionality in the comparative method of law, the
comparatist has to learn to live with it. The message is clear: 4omparative law6s principal gift
to +-
century legal science,
functionality, has a future, but it must be used with care and
respect and in a non?dogmatic and contextually inclusive fashion.
In using functionality, as
Fweigert and >GtH have argued most successfully, we are to proceed both with discipline and
4ite as: Antonios Emmanuel Platsas, The unctional and the &ysfunctional in the 4omparative %ethod of #aw:
Dome 4ritical Iemar!s, vol. *+., E#E4TI=1I4 C=(I1A# = 4=%PAIATIAE #A9, '&ecember +--.),
A% Blendon, %9 Bordon and 4 =sa!we 'n *;) **.
I Dacco, 5#egal ormants: A &ynamic Approach to 4omparative #aw 'I)6 '*@@*) ,@ The American Cournal of
4omparative #aw *, +@< % Aan Eoec!e in % Aan Eoec!e 'n *:) *@*?*@+< AA Palmer 'n **) +@.
> Fweigert and E >GtH 'n *) ,:?,;.