At a deeper level, there are also comparisons with legal culture.29x”Legal culture” is used in a broad sense that includes tradition, customs, worldview, paradigmatic legal frameworks, and anything that is not “law” in the strict sense, but influences legal thinking., legal argumentation (Bomhoff 2012), judicial decision-making (Lasser 2004), legal writing styles, divergent approaches to legal sources (MacCormick & Summers 1997; Komarek 2012) and the interpretation of law (MacCormick & Summers 1991) (e.g. the use of travaux préparatoires), the role of case law, the respective role of the legal professions (e.g. Van Caenegem 1987), the role of form in law in relation to substance (Atiyah & Summers 1987). Such comparative research has a strong theoretical dimension and seeks to draw the context in which legal systems are understood and applied by those working in these legal cultures. Methods of comparison at this level will be mainly analytical and historical, often revealing hidden worldviews that strongly guide attitudes towards the law. Even if these underlying legal cultures and worldviews are not part of positive law as such, they usually have a decisive influence on the final content of the law as applied in practice.30xSee, for example, the explanation of a divergent application of the same European rules in England and Italy by the influence of the Nebbia 2000 tradition. In private law, three conceptual legal frameworks have had a great influence around the world: the Common Law34xSee on the territorial expansion of the common law: McPherson 2007, chap. 8, pp. 295-325., the French Civil Code and the German Civil Code. Virtually all nation-state legal systems use one of them or a combination of two or more of them. A closer examination of superficial similarities and/or differences between legal systems may show that an appropriate comparison must in fact take place at a deeper level of doctrinal construction or paradigmatic framework. In fact, Ernst Rabel considered that the purpose of comparative law was to penetrate at this deeper level in order to gain a true understanding of the law (Rabel 1924). 3 See also the debate in the United States over the citation or non-citation of foreign jurisprudence, which in turn takes place in the discussion between “originalists” (depending on the historical significance of legal texts) and “evolutionists” (who want to adapt the text to changing circumstances) (Reed 2008, pp.
253-273). Comparative law has often been criticized for not following any method in comparative research. In fact, comparatists often behave like tourists visiting a foreign city and find that things are different, albeit to some extent similar, compared to their hometown. After their visit, they will be able to describe to their family and friends at home what they saw, but they will lack a more general framework used, for example, by architectural specialists or art historians to describe the same sites in a (very) different way. Comparative researchers should become professionals rather than tourists. However, the theoretical framework that historians and architects may have at their disposal is still largely lacking for comparative law. Although jurists have been trained with a fixed doctrinal framework for their own legal system, they do not have such a comprehensive framework for comparative research. Sometimes the “comparison” is considered a separate “method” and is called a “comparative method” without further explanation or concrete guidance. The only “method” proposed in the comparative literature that goes further is the “functional method”.
It provides a concrete guideline by proposing to focus on (common) legal problems and legal solutions in comparative legal systems, rather than on (divergent) rules and doctrinal frameworks. However, some elements for other comparative methods can be found in the literature, mainly in the field of legal theory. Based on these writings, we can distinguish six different methods for comparative research: the functional method, the structural method, the analytical method, the law in context method, the historical method and the common core method. Together, they probably form the entire toolbox of comparative research. The Nordic countries of Europe have never adopted French, German or English law, but their doctrinal framework has been largely influenced by German jurisprudence (Husa, Nuotio & Pihlajamäki 2007, p. 9). Although each legal system is unique, comparative law, by studying their similarities and differences, makes it possible to classify legal systems, legal families being the basic level of classification. The main differences between legal families lie in the source(s) of law, the role of precedents, the origin and development of the legal system.
Montesquieu is generally considered one of the first founding figures of comparative law. His comparative approach becomes clear in the following excerpt from Chapter III of Book I of his masterpiece De l`esprit des lois (1748; first translated by Thomas Nugent, 1750):[3] 29 “Legal culture” is used in a broad sense and includes tradition, customs, worldview, paradigmatic legal frameworks and anything that is not “right” in the narrow sense, but influences legal thinking. 6 See, for example: Flanagan and Ahern, 2011. Of course, such research has its value and for the purposes of this article (judges who cite foreign law as a source of persuasive authority) it even makes sense to limit the search to the countries concerned, because in many countries supreme courts never cite a convincing authority (even if they have used it), but only the law, that they apply. However, the results of a comparison between the common law and English-speaking countries can only give a false impression of universality. In the aforementioned article, the survey includes dishes from the United Kingdom, the Caribbean, Australia, South Africa, Ireland, India, Israel, Canada, New Zealand and the United States, in other words, countries from all continents. Arminjon, Nolde and Wolff[7] considered that, in order to classify the (then) contemporary legal systems of the world, it was necessary to examine these systems as such, independently of external factors such as geographical ones. They proposed the division of the legal system into seven groups or so-called “families”, in particular the current approach of “empirical legal research”, which has become popular in the United States and is slowly gaining ground in Europe as well, is a kind of modest sociology of law, without ambition to create grand theories, but aims only to test the implicit assumptions of the law or the effect and effectiveness of legislation. It should be obvious that such empirical tests are not only useful, but also highly desirable or even necessary. In some cases, a broader comparative scale that goes beyond the boundaries of a single legal system may provide more reliable information than a purely national search.20xSee for example.