On the methodology of comparative criminal law research

Abstract

Comparative legal research aims at identifying modern trends in, and searching for convergences and divergences between more than one legal system. Any meaningful implementation of elements of foreign legal systems at the national level and the smooth realization of the objectives of international and supranational justice presuppose a reciprocal understanding between legal orders that adhere to different traditions in terms of their normative foundations. This study focuses on the methodological questions of basic comparative research in the field of criminal justice. The article first briefly addresses the general problem of defining the aims and methods of a (comparative) research project (Section 1). Subsequently, the article explores the research method of functional comparison. The application of the functional method to the analysis of judgments rendered by supranational and international courts is also examined using the example of a recent case decided by the Court of Justice of the European Union on limitation periods (Section 2). The article concludes with an introduction to the construction and application of ideal types for the purposes of analysis and comparison, using the examples of criminal prosecution and procedure, with a special focus on modern evidentiary and plea-bargaining proceedings (Section 3).