However, in this way not much may be left for a functional comparison. What are the normative and theoretical implications of choosing casual short-term use of property over stable use? Such comparative research has a strong theoretical dimension and tries to draw the background against which legal systems are understood and applied by those working in those legal cultures.The methods used for comparison at this level will mainly be analytical and historical, often revealing hidden world views, which strongly orientate the attitude towards the law.Even if such underlying legal cultures and world views are not part of the positive law as such, they mostly have a decisive influence on the final content of the law as applied in practice.30xSee, e.g., for explaining a diverging application of the same European rules in England and Italy by the influence of tradition Nebbia 2000. However, it still will remain part of a description of foreign law, which in turn will be part of some of the mentioned methods within the context of scholarly comparative legal research. The latter methods are not mentioned among the six distinct schemes of intelligibility in the context of the social sciences in general, but we may see them as combinations of two or more of them. In concrete comparative research projects, it is the aim of the research and the research questions that will imply some form of comparative law (or not). Find out more about sending content to . In short, comparing only legislation is risky when there is no information available on how it works in practice, and such a limited comparison is only acceptable for countries which are not at the core of one’s comparative research. Indeed, ‘functionalism’ is used in quite diverging meanings, serving rather different goals: understanding law, comparing (tertium comparationis), focusing on similarities (praesumptio similitudinis), building a system (of ‘legal families’, for instance), determining the ‘better law’, unifying law, critical appraisal of the legal orders (Michaels 2006, p. 364-380). In Europe, its influence has been limited to Wales, Ireland and, to a lesser extent, Scotland. Moreover, different doctrinal structures may ‘create’ different problems, complicate or facilitate them being solved. McPherson, The Reception of English Law Abroad, Brisbane: Supreme Court of Queensland Library 2007, ch. 10 Samuel 2014, p. 81, with references to Berthelot, 2001, p. 484, and Berthelot 1996, p. 81. Putting law in context aims at understanding the law, as a foreigner to that legal system and, hence, explaining why the law is as it is. When comparing neighbouring countries, the researcher may have a general idea of historical and/or socio-economic similarities and differences. It will not take into account traditional marriage in African countries, where legislation only regulates ‘official’ (and monogamous) marriage, even if traditional marriage, concluded according to customary law, is accepted. However, the results of a comparison among Common Law or English language countries may only create a false impression of universality. Graziadei, ‘The Functionalist Heritage’, in: P. Legrand & R.Munday (eds. Van Caenegem 1987R. He lists (a) comparative law as an instrument of learning and knowledge5xCompare: ‘Comparative law is like other sciences in that its aim must be the acquisition of knowledge. Hence, for human beings there are no ‘objective facts’ independent from human cultures. please confirm that you agree to abide by our usage policies. However, the results of a comparison among Common Law or English language countries may only create a false impression of universality. Here, I’m not going into the discussion on the (im)possibility of creating a ‘meta-language’ (see Kjær 2004). Brouwer and Hage call them ‘stereotype concepts’, following the terminology proposed by Hilary Putnam (Brouwer & Hage 2007, p. 11). These controversies have such great resonance because they put pressure on a cultural identity made possible by, and inseparable from, the 'One Country, Two Systems' framework. Using analytical and practice-oriented approaches, it provides analyses accessible to readers discovering this field anew, while it offers a wealth of in-depth studies to those who are already familiar with it. Nowadays, all countries with a Christian tradition offer the possibility of divorce in their legislation. Post 1884H. This textbook enables readers to master and make sense of this galaxy in motion. The different ‘methods’ discussed hereafter are not mutually exclusive. 2010H. Adams & Griffiths 2012M. Differences between legal systems at the level of concrete rules become irrelevant if they share enough structural commonalities, such as Roman law principles and concepts in private law, to classify them as members of the same ‘legal family’, as opposed to other legal systems and families which do not share those commonalities. Reed, ‘Foreign Precedents and Judicial Reasoning: The American Debate and British Practice’, Law Quarterly Review 2008, p. 253-273. Being well aware of the important role of ideology in law, which is most visible in cross-cultural comparison, he emphasizes the need for ‘a comparative analysis of basic “jural postulates”, derived from the culture and its institutions in general, on the one hand, and legal values, abstracted from the ius as implied in legal decisions, on the other’ (Pospisil 1971, p. 345).
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