The Functional Method of Comparative Law

Abstract

The functional method has become the mantra of comparative law. For its proponents it is the most, perhaps the only, fruitful method; to its opponents, it represents everything bad about mainstream comparative law. This article tries to reconstruct and evaluate functionalist comparative law by placing it within the larger framework of other disciplines, especially the social sciences. Such an interdisciplinary analysis yields three promises. First, the interdisciplinary look should enable a construction of a more theoretically grounded functional method of comparative law than is usually presented. Second, the interdisciplinary approach should help formulate and evaluate the concept in order to determine how functional the method really is. Third, comparison with functionalism in other disciplines may reveal what is special about functionalism in comparative law, and why some things about other disciplines would rightly be regarded as methodological shortcomings may in fact be fruitful for comparative law.