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Functions of comparative law and practical methodology of comparing Or how the goal determines the road! by prof.dr. Danny PIETERS

Introduction In a course like this the teachers can take two approaches. They can try to unify their contents according to one paradigm or take the freedom of giving a personal view on the matter, leaving space to the student to develop his/her own opinion. The latter is preferred in a Research Master. Hence; I shall present to you my vision, which may be different from that of colleague Storme … and in fact needs not to be shared by all research students; it is the starting point for further reflection! The central message of my talk is: the goal determines the way to follow. It is only when you know the goal, the function of the comparative exercise to be undertaken, that you can determine which is the best way to carry out the comparison, the best methodology. Yet we may find out that at the end of the day some common principles do exist: some ‘do’s and do not’s’ which have to be respected in any case. From the outset it has to be stressed that the standards which will be put forward here, very often will be difficult to attain in practice, this however doesn’t undermine their value. It is indeed very valuable to know how things should be done, before embarking upon the real work and starting to make the necessary compromises with the real possibilities one has. And in any case it is important to be aware of the fact that one occasionally leaves the right road, as the final result may be colored by such deviation. I shall in this lecture first examine the functions of law comparison, the goals pursued with it; after which we shall focus on a number of methodological issues. In a next lecture I shall witness of comparative research in my own area of research, being social security comparison and social security law comparison. But before doing so, let me make some preliminary remarks: 1°) I prefer to speak of law comparison instead of comparative law. Not only we are not dealing with some kind of branch of law, such as e.g. family law or tax law; but moreover to speak of law comparison stresses the active element: one does something, viz. one compares. Yet much can be said

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about what is comparing, yet taking this active approach already involves some consequences. The very first being that one has to confront at least two items; you cannot compare one item. This implies already that the mere study of a foreign legal system cannot be named law comparison, except of course when the actor does more than he/she pretends and implicitly builds in some comparison. More about this later on. Comparing, and thus also law comparison is before anything else an activity, which may pursue various goals. The standard of the validity of the activity lays in the feasibility to reach the goals set forward. In other words, much of the discussion on the scientific character or not of law comparison, should be viewed in the light of that perspective. In that sense one could say that law comparison is close to the so-called applied sciences. Just like an engineer has to ask him/herself what the purpose is of the bridge, the building he is asked to design, in order to come up with goods solutions; also the person embarking upon law comparison will choose his ‘tools’ and ‘procedures’ in function of what the goal of the comparison is. This makes the whole exercise not less scientific. Others may find the image of law comparison as an applied science, too far reaching and may be more at ease in labeling law comparison as an ancillary science of law. The consequence is however not different. If law comparison is to serve the legal science, it will have to be defined in what way it should do so, in other words, again, we shall have to reflect first on the functions we want to pursue with the legal comparison, the standard to establish the value of the comparative activity again being set by their feasibility to serve these functions. 2°)One could spend quite some time on defining what is law comparison. Indeed many authors have made considerable efforts trying to come up with a definition of comparative law or law comparison. These definitions do in turn tell us something about the goal of law comparison, thus determine its functions. Our approach will be different. We rather examine what could be the functions of law comparison in the broadest and simplest meaning, i.e. comparing legal arrangements, in order in a subsequent time to examine, if that is the function, the goal of the comparison, and how that function can be realized, how that goal can be attained. 3°)When focusing on the functions of law comparison, thus of an activity, the comparison, we have to be aware that we are not examining the functions of the broad object of the comparison, the law. Indeed much can be said and written about the functions of law, but this is not the specific province of law comparison. 4°) We shall focus hereafter on inter-national legal comparison, i.e. comparing legal arrangements of two or more states; we know however that there do exist other sorts of law comparison; we shall deal with them separately after we have analysed the most important functions assigned to inter-national legal comparison, asking us at that moment whether the functions enumerated above also hold for these specific sorts of comparison. 5°) We deal here with law comparison, not with non legal comparison. This is rather obvious. Yet we shall see that very often it will be important in the

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process of law comparison to take on board also non legal features. Moreover, some of the functions traditionally assigned to law comparison, cannot exclusively be attained by the comparing of legal arrangements, thus by law comparison. Nevertheless we could say that as long as the predominant element is law comparison, the whole exercise could still be labeled as law comparison, the more that the law comparison as a science is more developed than comparison in some other areas. We shall have to come back to this issue later.

Part 1 The functions of law comparison

Section 1. The functions of inter-national law comparison We introduce a distinction between nearby goals, intermediate goals and distant goals. One should however realize that this distinction is not radical and that in some respects an intermediate goal may e.g. rather work out as a distant goal and vice versa. Subsection 1. The nearby goals By nearby goals we mean to indicate those functions law comparison seems to imply quasi automatically. One can stop there, or one could pursue with them more remote functions, which we label then as the intermediate and distant goals. We should observe that authors which are rather denying any function to law comparison, - some of them even stating that such function would be contrary to the scientific nature of law comparison -, will easily agree that law comparison at least serves to satisfy our legal curiosity and thus increases our over all knowledge and understanding of the world in general and the law in particular. So even then, law comparison is not merely done for the beauty of itself; In other words we do not need to be adepts of what is called the functional method of law comparison (about which later on) in order to accept that any law comparison serves some goal, even if it is only increasing our knowledge and understanding. Mostly one will do one little step further and agree that law comparison allows us to better know and understand national law. The first nearby goal, the ‘primary function’ of law comparison, as Zweigert and Kötz would say, consists in gaining knowledge, ‘Erkenntnis’. To know and understand national law of foreign countries is an obvious nearby goal of most law comparison. Indirectly many legal comparative enterprises may also allow to better know and understand one’s own legal system. First and foremost comes the knowledge of foreign legal arrangements. Merely describing a foreign national legal arrangement as such is not yet law comparison, but as soon as we do one step further, such as e.g. using

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another language than the one used by the legal arrangement, we already introduce a compartivist element. Most often we go further though and we focus upon elements of the foreign arrangement of special interest to us, i.e. we shall relate it to our own (legal and/or other) reality and thus perform law comparison. Law comparison will also help to look at one’s own system with some distance, allowing to see the specificities of the own solutions, and hence also finding out why the own law became what it is. Law comparison performs a permanent critical function towards the own law and challenges national legal prejudices. In this respect some qualify law comparison as an ‘école de vérité’ for the own legal system

Some may stop here: the goal of a science, and thus also of law comparison, is to broaden ones knowledge and understanding. However, we shall very often want to know and understand more, because we need to do so to reach more specific goals. Law consists of a nearly infinite number of rules, arrangements, institutions etc. To have an overview of them all is hardly possible. To get anyhow some access to the most important law provisions, we have classified that immense number of rules according to a number of parameters. One of them is obviously the source from which the rule emanates or the format in which the rule has come to us. We distinguish: constitutional law, statutes from Parliament, by-laws, judge made law etc. We need however also to classify the law according to the subject matter dealt with; this makes us distinguish between family law, torts law, tax law , labor law etc. It is only by cutting the entirety of law in smaller sections that we can handle it, e.g. for teaching, making handbooks, establishing specialized courts etc. A first problem is that the lines separating the various sectors of law are not identical in all countries. This already poses a first problem to the person wanting to understand foreign law rules and to compare it with the own rules. Indeed it makes little sense to compare family law in one country with family law in another country, as such, if in the first country family law encompasses not only the rules governing marriage and cohabitation but also the patrimonial consequences of marriage and its dissolution, whereas in another country the rules governing all patrimonial questions are not to be found under the heading of ‘family law’. So, before starting to look for what the foreign law says one will already have to understand the way the law is structured in the own country (which may be assumed) and the other country. But there is more. If we want to get grips on foreign legal arrangements, we should also be able to situate them in their larger context. Now nobody can expect that for a specific comparative question, one would start a comparison of the entire legal orders involved. So, like usual in science, every comparative legal scientist will have to build upon the findings of many others before them. This means upon concrete findings, but also upon the over all picture the earlier legal comparison has produced. Then it will be possible to ask the right question and to look in the right places. And if the not-immediate goal of the comparison allows for a selection of the national legal orders to be compared, it will help making this selection in an efficient and effective way.

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Here comes in the importance of the comparison based taxonomy of legal systems, subsystems etc.; in other words here appears the immediate goal of comparison, to classify national legal systems (subsystems etc.) into what has been called ‘legal families’. In fact to establish a valid taxonomy may even be seen as the goal itself of the law comparison, be it that as is the case for many of these nearby goals, they are most often themselves pursued in order to reach an intermediate or distant goal. Yet some like to oppose the concept of macro-comparative law to that of micro-comparative law; taxonomy of legal systems being at the heart of the first. Indeed in case of macro comparison the aspiration is to compare entire legal systems, as opposed to the comparison of specific legal arrangements. In this macro comparison establishing an order between the various entire legal systems and grouping them into families, constitutes of course an essential goal. The taxonomy is thus both goal and method of law comparison, as it facilitates the access to the law in the rest of the world. We shall come back to the issue of the law families, when dealing with the methodological problems. Allow me however to immediately say that we believe that any classification has a relative character, as it relates to the goal of the comparison and that when taxonomy of entire legal systems is the final and only goal, as in what is called macro-comparative law, the scientific price paid is often to narrow down the entire legal system to the more traditional branches of law (and especially private law), neglecting more modern or ‘marginal’ branches which indeed might be very important for the experience of law by the huge majority of the concerned populations. Earlier we already pointed at the fact that as soon as one uses a foreign language to describe a legal arrangement, one is in fact already involved in law comparison as using certain words rather than others to translate certain concepts, arrangements or ideas will deliver another legal message to the person hearing it. Therefore a good understanding of any foreign legal arrangement, presupposes good translation tools, and to develop these may indeed be seen as one more nearby goal of law comparison. As we shall see later, major methodological problems of law comparison are connected to linguistic issues. In order simply to get access to the foreign law, it will be important to be able to translate what is said there into another language, e.g. the language of the user. That this operation is not merely linguistic, but requires a knowledge of the foreign system as well as of the own system (and its legal language) implies that comparative work should support the making of dictionaries for translations, multilingual legal dictionaries and other ,e.g. IT supported translation tools. Although very similar to the translation goal, we should add the possibility of decomposition of legal concepts to be used in a common IT based law application system. If we want to set up e.g. an electronic tool to calculate net wages for expats around the world, we need of course to feed the system with the various involved national tax, social security and labour law rules. But these rules will use the same notions, such as wage, income out of work, family composition etc. which may have different meanings in various countries. If we want to develop the IT tool in an efficient way, we should be able to feed the system with individual pre-legal information, which then could

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be transformed into national concepts of wage according to necessity. Such a decomposition requires quite elaborate law comparison. Subsection 2. The intermediate goals At the intermediate level we meet some functions of law comparison producing some direct outputs. In other words, the comparative activity allows the comparatist to come up with some results which can then directly be applied. The teaching of law requiring a comparative element This is obviously so when the teaching of law is taking the form of a teaching of basic principles. As education enters the era of globalization, as more and more lawyers are being educated (or at least have part of their education) in another country than the one they will be practicing in, more and more university curricula offer law courses which do not (exclusively) deal with a specific national legal order, but offer (exclusively or also) courses based on the basic principles governing a certain field of law, courses reflecting that the national law is only one variant of what is seen as a ‘ius commune’ in the concerned area. Then it will of course be essential to identify these common principles, on a universal or regional basis or on the basis of the same ‘group’ of national legal orders. The latter implies a good taxonomy to be developed in different areas of law, and thus law comparison. The identification of what the basic principles are requires even more and thorough legal comparative work, we shall address under the heading of the distant goals. Yet the teaching on the basis of the comparative law results and their translation in learning packages, seems rather to belong to the intermediate goals. More generally the value of law comparison for forming good lawyers has been recognized in many countries, having made ‘comparative law’ as a compulsory part of the curriculum of the law student. In many national law courses also a comparative element will have been built in. And indeed few are today the Law PhDs which do not contain a comparative element. One might even go a step further and ask oneself whether the study of purely national law, can ever aspire to be a scientific discipline: no other science is indeed ‘national’; there is no French geology, no German psychology … as a separate science. How could there be such a thing as Belgian or Dutch law as a scientific discipline? Of course one can study Belgian or Dutch law as an object of scientific research, but the legal science itself will have to detach itself from the object of its interest and law comparison is an essential tool to such detachment and thus to a scientific law approach. Law comparison can provide very useful service to interpret national law. This is especially so when foreign solutions have been taken over in the national legal order. This is of course most striking in the case of so called ‘legal transplants’, where legal solutions developed abroad are taken over. But the reception of foreign law may also be more discrete and complex, elements of a national approach being taken e.g. from various countries. Also then the interpreter of national law will be well advised to look into the foreign legal system(s) which served as the source for the national law which is to be interpreted. Another occasion where it can be very useful to do some law

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comparison in order to interpret national law, is when the latter seems to be silent on the issue at stake. Law comparison is also essential to correctly interpret international and supranational law. This proceeds already from the fact that the source of this law may be rooted in the compromise by people with a different legal background. Law comparison will also be extremely relevant when the international law itself refers to ‘general principles of law’. In this respect we may mention article 38 of the Statute of the International Court of Justice recognizing ‘general principles of law recognized by civilized nations’ as a source of law the ICJ may apply; or to article 288 § 2 of the Treaty establishing the European Community stating: “ In the case of non-contractual liability, the Community shall in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties”. But also when no apparent reference is made to historical roots the international and supranational law, will often be interpreted by judges in various countries, which might inspire each other. Moreover not seldom international or supranational courts or surveillance commissions and alike may have been established to interpret the international and supranational law. These courts and commissionswill in turn be manned by judges or members which most often have shown their capacities within their own legal context. In other words if e.g. a European Court of Justice or the European Court of Human Rights has to give interpretations of concepts used in the European law that has been left to their good care, it is obvious that the members of these courts will, certainly in a first step of reasoning, reflect upon the issue at stake with the national legal background which is theirs. There is nothing wrong with that, especially for courts where one has exactly made that the composition of it reflects the various legal backgrounds. Again it is obvious that in a next step it will be important to relate one’s own background and initial approach to that of the colleagues… a journey implying good law comparison. It goes without saying that law comparison is essential in order to apply foreign law correctly. As a consequence of all kinds of national rules and international arrangements, a national administration, a national judge, etc. may find themselves in a position to apply foreign law. It is of course of the utmost importance that they correctly understand the foreign law. Here comparative law may be very useful, as it provides not only information about the foreign law (strictly speaking you do not need law comparison for the latter) but also allows to position that foreign law rule within the legal order the person having to apply it normally functions in. This is even more the case when the foreign law to be applied according to national or international coordination rules, follows another logics, other concepts than the national or international coordination rules applicable to it. Comparative law will also be useful to determine the limits set by the International Public Order to the application of the foreign law.

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Subsection 3. The distant goals When dealing with ‘distant goals’ we mean a number of functions that law comparison pursues, but where the results of the law comparison by themselves do not lead to an immediate application. They need to be combined with other legal and non-legal information, to be helpful to attaining the goal set. Moreover they will often also imply rightout policy decisions, which in themselves are not dictated by the law comparison. One of the most popular distant goals of law comparison is without any doubt finding de lege ferenda solutions. When a national law maker is confronted with the question how to change the national law, how to set up a law reform etc. it is rather self-evident to look how other countries have tackled the issue at stake. This goes for the Parliamentary groups and Governments, law reform committees of all kinds and also for common law judges. Law comparison may be very attractive as, obviously, we do not have laboratories of law. We cannot really test new legal approaches, and therefore the experience of other comparable countries is extremely valuable. The issue will of course always be: what is comparable? How can we keep ‘ceteris paribus’. Anyway, remains that very often the lawmaker will be inspired (in various degrees) by the foreign solutions. It may of course also be that the law comparison discovers dangers and problems raised by the foreign approach and so warns us what mistakes not to make. Yet it is important to notice that law comparison will never be able to dictate the law to be made to the deciders. The latter will always keep their own responsibility, law comparison merely bringing them pieces of information. If law comparison is a very feasible tool for law reform in a country, it is even more essential for the development of law at the international and especially at the supranational level, e.g. the EU law level. Again before accepting the international or supranational rule to be elaborated, one will have to take a closer look on how the matter in question is dealt with at the national level of the countries which tomorrow will be governed by the new supranational arrangement. We shall focus some more on this goal when dealing with harmonizing efforts, co-ordination instruments or even the identification of common basic principles of law. Under co-ordination of laws we would like to group all functions which aim to find solutions when more than one legal order is involved in the situation. We are in the domain of private international law international penal law, double taxation avoidance treaties, social security coordination rules etc. The goal is to work out national or international rules which at the end of the day will indicate the state(s) the law of which will be applicable in a concrete situation/case. To be able to apply the foreign law correctly, the concerned legal actor, such as a judge, will of course have to understand the foreign law correctly, as we dealt with in subsection 2 re the intermediate functions of law comparison. Here the law comparison has the more distant goal to exactly establish the national or international rules which will assign competence ratione personae and materiae rather to one legal order than to another. These competence attribution rules are to be drafted with a good knowledge

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and understanding of the differences and similarities of the legal orders to be coordinated. What is said about the co-ordination in the broad sense of the substantive law, is also valid for the procedural law, establishing the courts of which country/ies being competent to deal with a litigation implying multi-national elements. Harmonization and unification of laws is also a very important goal for many comparatists: the ultimate goal of their efforts is bringing closer to each other the various national approaches to the same issue. This aspiration can be modest and only want to influence the national law by imposing upon them some common principles, leaving the states the freedom on how to achieve the set common goal. This is the approach followed e.g. by EC directives to impose certain common features upon the Member States of the EU, such as e.g. the equal treatment of men and women in labor relations. The aspiration may go a step further an include the ambition to impose the same solutions to various legal orders, by imposing e.g. the same solution via a multilateral treaty or, within the EU, by a regulation. In some areas also uniform laws, model laws or model treaties were developed, which are then offered to the states as a soft way of unification of their law. Whether we are dealing with harmonizing or unifying the law of various countries, the starting point will always have to be a thorough study of the national legal orders to be harmonized or unified, i.e. good law comparison. Developing a common law and identifying common basic principles is another ambition of many comparatists. The quest for a common core of private law principles, especially European civil law principles, is known, but also in areas of public law the search for a core of common principles is to be found, e.g. in the area of human rights, good public governance or social security. Some have in the past also used law comparison to identify some kind of theories of the evolution of law, the actual own Western law concept being of course at the highest level of this evolutionary development. Other legal systems would show to be in earlier phases of their development, hence their inferior position compared to our legal orders. Hence also the need to level these countries and their law up. Although some of these approaches may genuinely have tried to be objective, most of them clearly fitted into an imperialist and colonialist vision of the world. Although it would be false to exclude completely the use of law comparison to establish certain patterns of the evolution of law or certain life-cycles of legal approaches, it goes without saying that this remote goal of law comparison finds few adepts today. More popular are other explanatory theories, which believe that law comparison can be combined with principles of economic or behavioral sciences and especially social psychology. As we cannot expand on these interesting approaches, only a few words of explanation. One of these approaches is being called ‘comparative law and economics’ In its most elementary form, the comparative law and economics protagonists believe there also exists a certain market of legal cultures, of legal solutions; as a consequence of the rational choice made by a ‘homo economicus’ this will lead to a convergence of the legal arrangements towards that arrangement proving to be most efficient. As one realized that people do not always make

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the rational choice, and that ‘rationality’ itself may show an American bias, some have tried to come to explanations for differences and convergences between legal arrangements on the basis of the study of human behavior. Let us merely observe here that both in the comparative law and economics approach, as in the more behavior oriented approaches, at the end of the day the researcher, and thus also the law comparatist, starts from the assumption there is a kind of natural or logical legal solution to any problem, to which finally all legal systems will converge; in the behavioral approach, differences in best solution might remain possible if the concerned people show culturally or ethnically different approaches to reality. Yet, this also comes near a differentiation between e.g. Western civilized world behavior and the behavior in what are usually called lesser developed non industrialized societies. Yet, also when we stay within a more classical law comparison method, these new approaches may show their value. As Raffaele Caterina writes1 “On the other hand, the use of empirical data on cross-cultural differences, but also the dialogue with the economic literature on institutions (and also on public choice theory, as exemplified by Anthony Ogus’s interesting hint on the role of legal professionals in the development of legal cultures (…) may constitute an alternative to the holistic and quasi-mystic way in which some comparative law literature speaks of cultures and traditions as spiritual entities, opaque to description and impermeable to evaluation”. Section 2. The other sorts of law comparison and their functions. National/international comparison is a first sort of law comparison we should discuss here. Law comparison may also consist in the comparison between national legal systems, on the one hand, and supranational and international legal arrangements on the other. This is certainly possible but one should proceed with caution in this respect. Some warnings are in place. First of all law comparison between national and inter- or supranational arrangements is not the same as testing the national legal arrangements upon their compliance with international or supranational legal norms. This being said, it is clear that whenever one is to test the compliance of national law with international or supranational standards, this kind of law comparison will have to be carried out. Furthermore, one should always compare the comparable. Comparing how a certain matter is (also) dealt with at an international level, with the way national law (incorporating that international law) is dealing with it, may not satisfy the comparability condition. A second possible type of comparison does not compare national legal arrangements, but those of infra-statal or non statal entities. This infra-or non state law comparison to a large extent shows the same features as inter-national comparison, but then applied to regional law, the law of cities, collective labour agreements of various sectors of industry in the country, etc..

1 CATERINA, R., “Comparative law and economics”, in: Elgar Encyclopedia of Comparative law, SMITS, J. (ed.), Cheltenham/Nothampton, 2006, 161-171, here p. 170:

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The first two types of non-inter-national comparison can then again be combined of course. Intertemporal law comparison compares the law or legal arrangements in the same state at various points in time. This intertemporal law comparison obviously comes close to the history of law. It differs from it because as such intertemporal law comparison works with frozen pictures at different moments in time, whereas history rather works with the dynamic ‘movie’ of the evolution over time. Probably intertemporal comparison presents no substantial advantages over legal history and is therefore less appealing. On the border line between inter-temporal comparison and inter-national comparison, lays what some have called ‘legal archeology’, which tries to find out which historical ties exist between various legal arrangements. Is there a common source? Was there mutual influencing? These questions are the typical distant goal of legal archeology.

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Part 2 The methodology

Section 1. The debate on the methodology of law comparison. In this chapter we would like to give a review of some of the most commonly discussed problems related to the methodology of law comparison. We do not intend to deal with all relevant challenges, nor do we aspire to any form of exhaustivity in dealing with these challenges. Also, depending upon the final goal of the comparison some of the challenges will appear to be more important than others. Let us also observe that the methodology of law comparison, has been a less popular topic the last decennia and that the scientific attention for the topic seems not in proportion with the quantity of comparative research that is actually undertaken. Some even contend that even without clear ideas on the methodology of the comparison, many qualitative comparative researches have been carried out. The latter seems a bit strange to me, as it is difficult to say that qualitative work is performed (even without attention for the correct methodology) when there are not standards recognized to measure the quality of the comparative work, except perhaps their practical utility. We are rather convinced that reflecting about the methodology of law comparison does have its own merits; and that many comparatists may end up with a not to bad comparative research result, because they nearly intuitively apply the basic methodological rules. Having said that, I am also convinced that many texts presenting themselves as (even attractive) law comparsions, suffer considerable methodological flaws undermining their feasibility to reach the goals set by the comparatist. According to Webster’s dictionary a methodology is : a body of methods, rules, and postulates employed by a discipline ; a particular procedure or set of procedures . By methodology is furthermore to be understood the analysis of the principles or procedures of inquiry in a particular field. As such one could say that comparing is the method of law comparison. This is of course right and indeed law comparatists should perhaps take more advantage of the scientific knowledge on how to compare (outside the legal sphere), yet it would be a bit too simple to restrict ourselves to this mere statement. Let us therefore explore the main areas of concern in the area of the legal-comparatist methodology. Before doing so, let us give some comment as to the traditional distinction made between two approaches of law comparison and its methodology. Traditionally: the dogmatic or descriptive method is being opposed to the factual, functional or problem solving method. The starting point of the first approach is to study legal arrangements in order to compare the legal rues, institutions and concepts which are used in it. Staring point of a functional approach is to examine how law in various countries tackles the same issue. We tend however to think that these opposed ‘methods’ of law comparison are in reality not so much opposed methods, but rather different goals pursued by the comparatist and hence different combinations of

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methodological comparison. If our ambition is macro-comparison, probably we shall focus upon the legal institutions and thus go for what is being called a dogmatic approach; whereas when we operate micro-comparison (or meso-comparsion) the factual approach may be very attractive, be it that when pursuing certain goals, we may limit ourselves to what is called a conceptual comparison, e.g. when the challenge is simply to translate a legal text correctly into another language. In the theory of the methodology of comparison, also much attention has been paid in the past to the comparability: comparison implying that what is being compared is comparable, i.e. shows some common features under which angle the comparison can take place. This leads to the debate whether one needs to identify a common denominator between the legal arrangement to be compared, a tertium comparationis in order to carry out decent law comparison. To put it simply one cannot compare apples with pears as far as their kindness is concerned, one can however compare them as far as their color, their consistency etc. is concerned. Similarly a certain communality is required in order to carry out properly law comparison, so it is said. The issue was especially raised in order to contest the validity of law comparison between legal arrangements from totally different legal (and political) orders, say e.g. between capitalist and socialist states. It seems to us that this theoretical debate has been by-passed somehow by reality and practice, and is less at the heart of the comparativist debate today. In our opinion, it is not so much the ‘tertium comparationis’ which is to be looked for, but rather the appropriate formulation of the goal of the comparison, the comparative research question, on the one hand, and the independent position of the comparative researcher towards his object of comparison on the other hand. More about this later.

Section 2 The phases of law comparison Constantinesco distinguishes three phases of law comparison: knowing, understanding and comparing. In a way these three phases will indeed be present in any comparison. One has to gather information about the comparative research question’s object, one has to situate what is found in the various legal orders within its national context and one has to operate the comparison as such, i.e. establish the similitude and differences between what has been identified in the various legal orders being compared. Yet these three phases should not be seen as purely consecutive. In order to establish the comparative research question one will already need to have some clue on what could be the results of the comparison, e.g. to make an appropriate choice of legal orders to be compared. Moreover, the understanding in its context of the information gathered in the first phase is indeed important, but one should also consider that this contextual situation itself can be the object of the comparison, as we shall expose in relation with the idea if system-internal- comparison.

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Some, like Kokkini-Iatridou add a (fourth) phase consisting in the evaluation of the result of the comparison; in the classical literature it is however contested whether the evaluation is still part of the activity of law comparison as such. Moreover, one should relate the question also to the finality of the comparison; and warn for the exaggerated expectations of policy makers, as we shall develop later on. Once enough information has been gathered and systematized, that information also situated within its own national context, the comparatist will do what belongs to the essence of his scientific activity: he/she will compare, establish similarity and differences and try to understand and explain them. Here the question is not merely what? What do we find? What are the differences and similarities? But the central question becomes: Why? Why do we reach the comparative results we have come to? The answers to that why? question may be found in the legal orders which are being compared, but may also be explained by a number of other factors, which other sciences will help us to identify: history, economics, sociology, political science, even collective psychology, geography or demography. Religion and ideology may play a role, as may the intervention of accidental factors or events. How far do we want to go with the exploration of the why? question will again depend upon the goal of our law comparison. Let us warn that in the avenues explored to explain the identified differences and similitude the comparatist will have to pay attention not to be guided by own preconceptions. It is a clear that a Marxist may be tempted to explain all differences by the economic substratum, but it may very well be that in certain cases the economic substratum is really no relevant. Here again, the comparatist should keep an open mind for all feasible explanations, not only for those that please his convictions. The danger of ethnocentricty or systemcentricity is very much present here; more about this in a next chapter. Likewise we refer to the next chapter for discussing an approach which may appear to be very useful in this context: the system internal method will often provide us with interesting findings; more about it in a later chapter. We are furthermore convinced that there is one crucial preliminary step, phase if one wants to call it this way, which should be given full attention: the clear identification of the goal of the comparative enterprise. It is only in sofar we are from the outset clear about what we want to achieve with our comparison, that we know what the underlying research question is, that we shall be able to proceed properly with the law comparison. We believe that this is an often underestimated previous step; one often rushes into the study of foreign legal arrangements, tries to understand what one finds, compares ….but forgets what the real goal was. In our opinion the goals of legal comparison can be many, as we exposed in the previous chapter, but to stay on the road of correct law comparison, we always have to keep in mind what the goal is we want to reach. Hence the crucial first step is to formulate what the purpose of the comparison is, and subsequently to articulate that goal in a research question and sub-questions we shall confront the to be examined legal arrangements with.

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Section 3. The countries to be compared Inter-national law comparison implies that the legal orders or legal arrangements of at least two different countries will be studied and compared. Sometimes the goal of the law comparison will imply the selection of the national laws to be included. It is e.g. obvious that if the interpretation of a notion in a bilateral treaty is the goal of the comparison, the latter will involve the two contracting states. At other occasions, the goal of the comparison, does not pre-determine the countries to be compared. One of the first decisions for the comparatist to make will then be to select the countries he/she wants to include in his/her comparative study. In order to choose between the multitude of countries, the comparatist will be guided by his already acquired knowledge about the way various states deal with the topic at stake or he/she will fist do some preliminary research into which countries law systems seem to be most interesting for that particular law comparison. The comparatist may be helped in his/her choice by previous comparative work, and especially by the earlier established taxonomy in the area of his interest. In other words when the comparatist knows the legal families in presence, his choice will be facilitated but not determined: he may like to compare legal arrangements of various countries belonging to the same legal family, or rather prefer to examine legal orders representative of different law families. How he will choose will again depend upon the goal of the law comparison. In general one could also say that macro-comparison will often go for comparing legal orders proceeding from different families, whereas micro-comparison may more often go for comparing national legal arrangements of countries belonging to a same family. The theory of law comparison is acquainted with the existence of law families, which are groups of legal orders sharing a number of characteristics and can thus for certain comparative purposes be treated as a group. I do not intend to go deeply into the notion of law families or to summarize the legal arrangements which are usually grouped together as constituting the same law family. Instead I will only make some general observations. Firstly, it is possible to establish that the "classic" law families, such as the "Continental European", the "Anglo-Saxon", the "socialist" (now obsolete?) law families are mainly the product of private law. In public law the comparativist is also confronted with the need to classify the legal orders to be compared; he/she will be confronted with much more problems to achieve a suitable classification into law families valid for the entirety of public law. It is far more likely that he/she will set up law families according to the aim of the public law comparison he/she intends to undertake. If for instance a study of the constitutional protection of fundamental rights is at stake, a classification of countries with and countries without a written constitution, or a classification of countries with and without a constitutional court, ... may be relevant for the comparison of those constitutional provisions. This classification may differ when one is confronting the relation between the Executive and Legislative branches of government; then it may be appropriate

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to distinguishing between countries with a presidential regime and countries with a parliamentary regime, etc. We could say that more and more it is accepted that the taxonomy to be established is very much depending upon the area of law studied; this is certainly the case in public law and more modern law areas such as environmental law or social security law. But increasingly one will have to be cautious also when dealing with private law topics, not to take for granted that the legal families of private law established sometimes for many decades ago already, still exercise a good discriminatory effect allowing to make the best possible choice of countries to be compared. The number of countries, of legal arrangements to be compared may be pre-established as one is interested in a well defined group of countries, e.g. the countries of the European Union, the purpose of the comparison being to help develop an harmonizing EC directive or regulation. Often however the number of countries to be compared is not given, and is a decision left to the comparatist, who will have to decide in function of the goal he/she pursues. Yet only one remark. If the idea is to compare, to find out similarities and divergencies and to explain them, it will be easier to find the really discriminatory factors when a larger number of countries is object of the comparative research. If only two or three national legal arrangements are being compared, the similitude or differences which may be identified may have trivial reasons, which do not help to fulfill the ambition of the law comparison as such. Where we tend to have even greater reservation is towards comparisons including only two or three countries, one of them being the own country. Although I know that such comparsions are rather popular, I cannot but be very suspicious as to the validity of the comparison, as I shall explain later on in relation with the danger of system-centricity.

Section 4. Knowing and understanding Subsection 1. Principles related to the knowledge of the foreign law In our first chapter we have already dealt with the interrelation between the mere knowledge and description of foreign law and law comparison as such. Let me add in this part on methodology, that it goes without saying that certain basic rules have to be observed when studying and describing foreign law, which one could summarise as avoiding to see the foreign law through the glasses of one’s own understanding of law. We shall dwell some more on this omnipresent danger of system-centrism, yet only some ‘methodological’ thumb rules:

- respect the own structure of sources of law and their hierarchy in the country concerned;

- respect, as far as possible, the own logic of the legal system which you study. This ‘own logic’ will have to do with the way judges interpret the law in the country, the importance of administrative interpretations, the over-all position of law in society, the acceptance of breaches of law in

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society etc. The ‘own logic’ has also to do with other phenomena which are less easy to identify. Bogdan e.g. reports that legal writing in Latin America is often extremely dogmatic and entirely neglects to refer to and discuss judicial decisions; whereas the authors of these dogmatic works when acting as practicing lawyer, make use of their comprehensive collections of judicial decisions. The other standing of law as such in the societies of the Far East may provide another illustration of our present concern;

- work in original language and on primary material and thus avoid translations and descriptions made by others in another comparative context. More about this later.

Also the time factor has to be taken into consideration. Although rather self evident, it is good to remember that if the purpose is to do some international comparison, i.e. a comparison between legal arrangements in various countries, we should also gather our information over the same time period. In other words, it is difficult to justify to compare three countries, two of them with up to date legal materials, a third on the basis of documents and materials which date back five or ten years. The latter may be the consequence of the researcher not finding more actual documentation in his/her library, which explains but does not justify the difference in the time factor. In general the comparatist will therefore take care that, unless his/her purpose is stated differently, he/she should endeavor to have up-to-date information. Zweigert has proposed a presumption of similitude (praesumptio similitudis) as general principle of law comparison, establishing that the comparatist in gathering his information and describing the national legal orders, and later in his comparison as such, may presume that if no contrary information reaches him/her, the compared legal orders may be assumed to have opted for similar approaches. This presumption developed in a private law comparison context, mainly comparing legal orders based on similar religious, moral and ideological grounds, can in my opinion not stand the test when the comparison is not in the same setting. More even, this presumption may lead to justifying the unjustifiable: looking at the foreign legal arrangements with tainted glasses! Zweigert of course had his reasons for putting forward the presumption of similitude; as any comparatist he was confronted with the seemingly impossible task to carry out good comparative work and he looked for a help in order to uphold the moral of the comparatist. We do not think however this is a good approach; and, as we shall conclude later, we have to aspire to do the best possible law comparison, and that also implies to know what is possible and where our limits lay. Subsection 2. The accessibility of information / the importance of working on original material A recognized topic in the literature on the methodology of law comparison relates to the accessibility of the information. The information on the legal arrangements to be compared must be available and reliable. If e.g. the way judges interpret a same principle in various countries is to be compared, one

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obviously needs good access (e.g. via publication of cases) to the related decisions of a representative number of concerned judges (and e.g. not only of a few judges in the capital city). Also one has to be sure that the information published in local legal publications is a correct reflection of the judicial decision, and not already an interpretation thereof by the editor. Many actual comparatists may be tempted to rely on the internet for their information on foreign legal arrangements, but it is obvious that information contained in various web sites may be of a very divergeing quality and reliablility. One should never forget this. These problems of accessibility of the information are sometimes very real and difficult to overcome. They should however not be mixed up with the difficulties a particular researcher may be confronted with to get access to the relevant and reliable information, e.g. because he or she cannot travel and do research in situ, because the researcher has no access to the language in which relevant materials have been redacted etc. We shall deal with these ‘personal problems’ later on. One will prefer to access the information in primary sources: in the statute book, in the case decisions, in the original administrative decisions etc. rather than in secondary sources such as textbooks, reference manuals and other legal publications in the country concerned. Yet this is equally true for non comparative legal research. Moreover secondary national sources may be useful to get a quicker access to relevant materials of primary sources, again just like this is the case in non comparative legal research. We would however like to address here two particular issues:

- firstly, one should refrain to use too much different materials when studying the various legal arrangements to be compared. In other words, it is weak comparative research which for some countries relies exclusively on original materials, and for other countries only on a few manuals. It is not good to base one’s description in one country exclusively on the statutory provisions and the case law of the constitutional court, whereas for another one gives a description based on all kinds of original and secondary law, including the case law of the ordinary courts and tribunals;

- secondly, the materials used should preferably be ‘national’ that is developed in the legal context out of which they are taken. In other words one should preferably not use description which themselves stem from other comparative research , whereas for other countries one uses national materials.

The use of descriptions of foreign law gathered in the framework of other comparative work deserves anyway our special attention. First of all descriptions of foreign legal arrangements are made in the perspective of a specific comparison with its own goal and, as a consequence, its own way, methodology to pursue that goal … and the own special conditions under which that comparative research is being carried out. The limitations of the comparative research may be clearly stated in the text. Yet when one takes out of such a comparative text, information to be used in the framework of another comparative research, one should be extremely cautious not to forget about the limitations of the first comparative research. An example to illustrate the thought. Let us assume a comparative research concerning the principle

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of gender equality in labor relations, throughout the legal systems of countries A, B, C and D in order to come to some advice to the policy makers of country E. In an earlier other comparative work the labour relations in countries C, E and F were described. As there was no possibility of good access to reliable information on the collective labor agreements concluded in country F, it was decided to leave out the collective labor agreements from that comparative study. One may be tempted to use for the new comparative research (on gender equality) the descriptions concerning the labor relations law in country C (as far as gender equality is concerned). Yet one should in such case remember that the first study excluded collective labor agreements, collective labor agreements which might be relevant for the gender equality study. A more general problem with using parts of earlier comparative research relates to the difficulty to identify the options taken by the earlier comparatist; if the quality of the earlier comparative work is good, the earlier comparatist will have explicitated the research options taken. But when can we be sure he/she really did so? In other words, building further on comparative research of others, always introduces an element of research insecurity in the own work. Let us add in this context a strange phenomenon we could observe on several occasions, and which is not without importance to what we discuss here: quite a number of authors and speakers, scientists, civil servants and policy makers are somewhat schizophrenic when dealing with their own legal system. When they speak to national audiences and in their own language they are often extremely critical of their own system. However, they are much more understanding, positive even, when they discuss or describe the same topics to an international audience (in an internationally easily accessible language). It is not the appropriate place to look for reasons to explain such an ambiguous attitude; we can merely observe it and draw at least one conclusion: let us read 'original' work of these authors. Having said all this concerning the dangers of using the work of other comparatists, it is needed to recognize as well that probably no comparative researcher can undertake a full fledged comparison without leaning upon the shoulders of other comparatists before him. This is e.g. obvious when we deal with the issue of the choice of the countries to be compared; but also in many other issues we shall rely on other comparatists. There is nothing wrong with that, as it is simply an expression of how science progresses, step by step, building upon and at the same time always verifying the earlier steps. Subsection 3. The linguistic issue Language is in many respects a challenge for the comparatist, and certainly not only for the one whose final aim is to make a multilingual legal dictionary.

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If we try to systematize the various moments in which there can be identified a linguistic challenge, we come to the following result. First there is the most obvious problem that the foreign legal orders may and indeed will most often use different languages. Yet the comparison will have to be performed in one language, which may but needs not to be one of the languages of the concerned countries. Even if the legal arrangements use the same idiom and also the comparison will be carried out in that idiom, the linguistic problem is present. Indeed the common parlance is different from the legal language and generally speaking the legal language will follow the legal order which uses that language (and not the other way round). As a consequence the same language may use the same words, but attach a different meaning to them. This is what is known in literature as the homonym issue. So one can presume that when a law comparison is carried out one will be confronted with as many legal languages as there are national arrangements being compared. The formulation of the research questions, the description of the national legal arrangements, the comparing and the assessment of the differences and convergence, the attempt to explain these, in other words, the law comparison will also use a language. Here the question is how to make that this language in itself is not distorting the question, the description, the assessment and explanation. Very often thus a comparatist will have to carry out translations of legal texts, legal arrangements and documents, case law and doctrine. We have insisted upon the importance to use original materials, and when using secondary sources to use preferably national sources (made for internal use). Using original and other national material, raises the issue that the comparatist needs to have access to the (legal) language of the concerned countries. It may form an almost insurmountable obstacle if countries with a less common language are also involved in the comparison. It leads to situations where legal orders which use an internationally well-known language are often involved in the comparison, whereas countries with probably more interesting legal arrangements, are left out. Ireland and Belgium will, for example, be involved in the comparison, whereas Denmark and Portugal, which for some issues may be more interesting countries to compare, are not involved. As far as Belgium is concerned, there is the additional problem that persons who are not native speakers of Dutch will often study the country exclusively on the basis of French documents. That is why they will often get, as far as secondary material is concerned, a distorted view of the state of legal doctrine, of administrative practice, etc. in Belgium. If non-original documents from outside the compared country are being used the linguistic problem surfaces not once but twice. A first time because a translation operation has to be realised by the person who writes the document intended for international readers. A second time when the actual (law) comparison takes place. The problem is that the comparatist often cannot asses the quality of the

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first translation operation and therefore he/she cannot be sure of the results of the own comparison. Translation itself is not merely a linguistic operation, but requires a knowledge of the foreign system as well as of the own system (and its legal language) and thus implies that comparative work supports the making of dictionaries for translations, multilingual legal dictionaries and other, e.g. IT supported translation tools. We have in this sense identified making these translation instruments as a nearby goal of nearly all law comparison. Yet it may also be that developing these translation tools is not only the nearby goal, but also the final goal of the law comparison. Whatever is the case, it will be of crucial importance to guard that the translation exercise does not in itself distort the comparative work. If the whole comparative operation aims at providing an accessible knowledge of a foreign system to the (lawyers’) public, then one may be satisfied with a description of that foreign system, using concepts and institutions of the public one aims to inform. The source language, i.e. the language of the foreign legal arrangement, is then being translated into a target language, which is the legal language of the audience. One should however beware not to use uncritically such a translation for other comparative purposes. This is especially dangerous when the target language is a world language and thus likely to be used for re-translation in yet another target language. If one’s ambition is to carry out a comparison between a number of national legal arrangements, the use of one of the involved legal languages presents an enormous danger of distortion of the whole comparison. We prefer therefore the use of an exogenous language to describe the national legal arrangements involved. We shall come back to what such an exogenous approach implies, in a next chapter. For the time being may we suffice with stating, that the enormous the linguistic problems connected with law comparison may seem, it would be wrong to believe that no solutions exist to overcome major part of the linguistic problems sketched. One way of overcoming the problem concerning the need for knowledge of languages, is setting up research centres where collaborators master a large number of languages including less common languages and the various members of every team follow up the concerned law of one or more coutries. The various Max-Planck Institutes for comparative law seem to follow this pattern. Due to the difficult access to foreign material, comparative legal research is often approached from a different angle. A circle of national experts is set up each answering uniform questionnaires about their country, preferably all in one and the same language. The results are afterwards subjected to the actual law comparison. This method can yield very good results if it is carried out very scrupulously. The monster of ethnocentrism however rears its ugly head and threatens the comparison in various ways. The uniform questionnaire, on which the descriptions of the schemes of the countries involved in the comparison will be based, will have to be redacted in consultation with all national experts. If this condition is not met, the answers to the questionnaire threaten to be more than just a little biased by the authors' knowledge of only one or some legal

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orders involved in the comparison. In addition, special care has to be taken to ensure that the national experts interpret all questions in the same way. The collection of national reports, which are subsequently processed by the (central) research team, does not suffice. The national experts will also have to be actively involved when the actual law comparison is carried out. It will now be clear that a meticulous implementation of this approach is not only very interesting and fruitful; it is in general also rather expensive and therefore often only considered as a far away ideal. An alternative approach, which approximates the qualitative surplus value of the approach described above without generating such high costs, consists in working out a uniform questionnaire, drawing up national reports and carrying out the actual law comparison, all of that by and within a central and multilingual research team, but periodically testing the results with legal academics from the countries subjected to the comparative research. Such tests may take place when the collection of material is finalized (checking whether no interesting material is missing, whether all aspects have been dealt with sufficiently, whether the right contacts have been established, etc.), when the first draft of the national report is finished and/or when the actual research result (the comparison) is being completed. Subsection 4. The tension between ‘law in the books’ and ‘law in action’ There has always been a gap between the issuing of rules and their application, between "law in the books" and "law in action". This is nothing new. In some branches of law the gap between both is larger than in others. This may be due to a series of factors, such as the societal support of the rules, the mechanisms of law enforcement, the perception of the binding nature of legal rules by those to whom these rules are addressed etc. Law comparison may help to expose the differences between law and practice. However, this will often not be an easy task, as the lawyer often misses the tools to measure the implementation of the law under examination. A specific problem appears if the comparatist is confronted with the poignant question of how deeply he should pursue the discrepancy between legal standards and practice. He will often feel obliged to adhere as closely as possible to a description and comparison of the legal rules. He may then have some idea of the real value of these rules but will not describe it. However, what should be done with law instruments which are systematically disregarded in the concerned country or where practice contra legem is so strong that it often makes one forget the very existence of the valid legal standard? Logic dictates that one should not take into account this practice for one country whilst for another, only legal standards will be described. It would not meet the requirement that only comparable things can be compared. The result of a "pure" comparison of legal instruments and rules can nevertheless be misleading too. On the other hand, taking practice into account (in the worst cases) whereas it is not usually taken into account also poses problems. Is it possible to overcome methodologically this problem? In our view, the dilemma will probably remain. It is important, however, that the comparatist remains aware of the fact that if he involves practical elements in law comparison, only

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when reality deviates significantly from the legal standard, he makes the validity of the law comparison dependent upon the validity of his judgment on what constitutes a (very) "significant" deviation. Broadly speaking, every option to overcome the dilemma, can be valid under certain circumstances, as long as one remains aware of the fact that such options were taken and that the chosen option significantly influences the result of the social security law comparison. Subsection 5. Factors unrelated to the law comparison, but related to the person(s) carrying out the comparison. Sometimes to justify flaws in a law comparison set-up, e.g. in the choice of the countries to be examined, the materials consulted to know the foreign law etc. arguments are used not related to the topic of the research, but to the person(s) of those carrying out the comparison. Linguistic barriers, time constraints, lack of the practical possibility to go and consult materials, which as such are accessible but not to the researcher, can indeed hinder a proper carrying out of the law comparison. These personal elements do not justify however lesser law comparisons, they merely explain them. The researcher will anyway have to keep in mind the methodological flaws when making his/her final conclusions. The latter seems often forgotten. One mentions the personal restrictions somewhere in the introduction, and then comes with statements and conclusions at the end, claiming a full scientific foundation and ‘forgetting’ all the concessions made to the personal situation of the researcher(s). This is not acceptable; making the concessions is, but one has then to remember them also when making the conclusions. This brings us to our later more general remark: modesty is required when performing law comparison and presenting its results.

Section 5. The comparing As was announced earlier the central message we would like to convey reads: the goal one pursues, the function of the comparison determines the road to follow, the methodology of comparison. How you compare, will thus depend upon why you compare. As a consequence many methodological approaches mentioned above, may appear to be valuable in certain contexts, and less or even not in others. Still I would like to stress also some common features, such as the danger of system-centricity and the value of system-internal comparison, which are common to all law comparison.. Whatever the goal of the law comparison may be, it will be important to make that the comparison does not get contaminated by implicit but not verified assumptions and prejudices. The most important danger seems to be here that the comparatist looks, without being conscious of it, with ‘coloured glasses’ to the legal arrangements he/she compares. When the danger is not seen, or no appropriate measures taken when setting up the research, we will

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be confronted with systemcentric or ethnocentric deviations. Hence the importance of working with exogenous research questions and concepts. Now more about the ethnocentric threat and the answer of the exogenous approach. The term 'ethnocentric’ is probably not completely accurate. It is certainly true that also the danger of ethnocentrism is dealt with in general comparative law, but in that case the danger primarily consists in regarding certain phenomena exclusively from the viewpoint of a certain culture, a certain 'ethnos'. The danger we would like to discuss here consists in undertaking law comparison with certain prejudices linked to the researcher's own legal system or to a dominant legal system. We could call it the danger of 'system-centrism'. However, the word does not exist and there is no real advantage in introducing it. We therefore stick to the usual terminology and speak about the danger of 'ethnocentrism'. To the comparatist, ethnocentrism is like a many-headed monster; if you chop one head off two appear in its place. However, this monster has to be vanquished. A first weapon to do so, is to use an exogenous approach when setting up and carrying out the comparative research. Subsection 1. The exogenous approach Questions with regard to legal comparative research have to be independent of any direct or indirect reference to a legal order involved in the comparison. The same goes for the subquestions, that make up the uniform survey and the concepts (and language) used in these and in the comparative conclusions. This requirement that the observer and the observed should be independent from one another, we call the condition of exogenousity. The concepts, language, questions and statements have to be formulated using words, concepts, etc. which are coming from outside (exo-genous) the legal orders submitted to the comparison. The very important, yet even crucial, the observance of the exogeousity may be, for the scientific validity of the law comparison, in practice very often one will have to settle with some concessions. This will also be a bit dependent upon the goal of the law comparison that is being pursued and the area in which the law comparison is being carried out. Let us illustrate some more our thoughts. The emphasis on an exogenous approach seems very much in line with what is usually called the "functional method"of comparative law, i.e. the method which looks for the way a certain social, political and/or economic problem is solved by law. The well-known Italian legal comparatist Cappelletti wrote in this respect: "The tertium comparationis for the legal comparativist is not the legal solution given to a problem of societal life; such a solution might be a very different one in each of the countries examined. What must be similar to provide the proper basis for valuable comparative research is only the problem itself that demands a solution in terms of law".

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In our approach however we stress the requirement that the problem will have to be formulated in a pre-legal or exogenous sense, explicitly detached from any concrete legal order or legal terminology, implied in the comparison. This needs little explanation when the questions underlying the law comparison, the goal pursued by the comparison, are of an exogenous nature. For example, when the point of departure is: how do the different legal systems achieve a certain social policy objective? This objective can, for example, be a population's medical care, the social protection of the poorest, the equal treatment of men and women etc. It goes without saying that in all these cases the research question can be formulated autonomously from any of the (compared) legal orders and detached from a given national legal terminology. Subsequently, no specific legal order will be referred to when defining the concepts which are to be used. One has to be cautious though; what seems to be exogenous, may at a closer look, not be. Questions such as: how is the population protected when it needs medical care? How are the very poorest guaranteed a minimum standard of living? may lose their exogenous character if the concepts "medical care" or "decent standard of living", are subsequently defined exclusively referring to one of the compared legal orders. It was already stated that exogenous means, among others: detached from any concrete legal system, whether national, inter-, supra-, or infra-national. This statement now needs to be nuanced somewhat in order to leave open the possibility to compare the comparable (elements of) legal arrangements by defining the research object in terms of a higher or alternatively lower legal order. Starting from a (legal) system that is involved in the comparison is fundamentally wrong. On the other hand, it is sometimes useful and sensible to compare for instance (elements of) national law on the basis of a research object that is formulated in terms of a supranational or international legal instrument. However, it should be kept in mind that if this option is used, comparative activity comes very close to the distinct activity of testing national legislation against supranational or international law. After all, such a test does not only yield a different result, notably a statement about the conformity of national with supranational and international norms, and therefore not a statement per se about the mutual relation between the various national legal systems. At the same time, it implies an approach that has to be distinguished from the one used for mere comparison. National reservations to the international instrument, the actual enforcement of supranational law, case law etc. may have to be taken into account when testing. On the other hand, it will be clear that comparative law very often carries out the preliminary work for later testing. If in law comparison the research object is formulated in terms of supranational, international or maybe even infranational legal instruments, one will have to make sure that the comparison does not 'degenerate' into a test. In other words, taking the step from a comparison of systems on the basis of a common criterion to testing each of these systems against this common criterion, always has to be done consciously.

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To try to formulate in exogenous terms the problem underlying the comparative legal study, seems unlikely to cause considerable problems if the object of comparison itself is presented in a functional way. However, are there no special problems if the object is precisely comparing legal concepts and institutes, legal remedies, etc. ? Can in such cases an exogenous problem description really be started from? We believe so indeed, be it that it may take some more time at the beginning of the comparative research to develop adequate terminology, concepts and research questions. Also in these cases it will be necessary to formulate the research object in such a way that there is no need to use the conceptual apparatus of one oft the legal systems involved in the comparison. It seems essential to me to reformulate the questions in terms of finality of comparative attention. The question is then: "What do I wish to achieve with this exercise of law comparison ?” So again, we shall have to determine what we do by why we do it, the comparative methodological road we will follow by the goal we want to reach. It will be apparent from the previous that the exogenous formulation of the legal comparative research objects is indeed required, yet it is certainly not always simple. Furthermore, depending on the object of the comparative legal study, the degree of complexity involved in switching to a genuinely exogenous presentation of the issues may vary. In addition, we may observe that for an exogenous formulation of problems, we can make use of the descriptions that other scientific disciplines give to certain concepts , at least insofar as these scientific disciplines have not been influenced themselves too much by one or several dominant national cultures. To support, but also to check the authenticity of the exogenous nature of the comparison, it is also possible to make use of the inventory of the national approaches towards the legal notions to be studied. On the one hand to support, as it could turn out that the original point of departure was formulated in a poor way, for example too broad or too narrow for all of the countries to be compared. On the other hand, also to verify the authenticity of the exogenous nature of the presentation of questions of a comparative legal research. If a national approach of the legal notion to be studied coincides entirely or quasi-entirely with the so-called 'exogenous' concept that lies at the basis of the comparison, it is best to ascertain whether the chosen exogenous phrasing is not (secretly) influenced too much by a particular legal system involved in the comparison. The request of exogenousity also applies to the structure given to the description of the legal arrangements involved in the comparison. The most important and most difficult task of legal comparative research is its set-up, the definition of a uniform questionnaire that can be applied to all the legal orders involved in the comparison. The correct formulation of the correct questions is the key that determines the success of the entire law comparison. However, the researcher will need both experience and luck to develop a complete and entirely accurate questionnaire from the onset. The questionnaire will often face a number of difficulties when applied to a number of states examined. If the same problem arises in all countries involved in the comparison the solution is quite simple : adapt the questionnaire. However, the

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situation is more complicated if only some legal orders involved in the comparison do not allow an adequate approach by the questionnaire. It will of course be necessary to ascertain whether or not national legal 'prejudices' have crept into the questions. If this is the case the questionnaire will have to be purified and the legal comparison on this point will have to be repeated for all countries. There may also be a problem if the exogenous nature of the question concerned is firmly established, but one or more schemes do not lend themselves to answering some of the questions. Such a situation can, for example, occur when a certain question simply has not yet arisen in a certain country and therefore appears neither in the legislation, nor in the legal doctrine or in the case law. There are two solutions available to the comparatist: he either establishes that the question cannot be answered from the viewpoint of the legal system, or formulates himself the answer according to the law of the country being studied. Sometimes the first approach, sometimes the second, is in order Finally, we would like to note that a special problem will arise if the definition of concepts is more advanced in one legal system involved in the comparison than in all the other countries. If an attempt is made to set up a uniform questionnaire on the basis of this more refined conceptual arsenal, which is only directly relevant for one state, we might face both the direct danger of national distortion and large gaps (or the necessity to fill in gaps for all other countries). Such problems may occur e.g. when comparative legal research is carried out by comparatists of countries with a very sophisticated and conceptually rich legal order . The richness of their conceptual framework may end up creating obstacles standing in the way of correct non-ethnocentric law comparison. Subsection 2. More on the danger of ethnocentricty The comparatist needs to be on his guard against ethnocentrism not only for the exogenous description of concepts and questions used. In its most brutal form, ethnocentrism affects the very existence, the meaning of a comparative legal research. Although it is usually not too difficult to unmask such corruption of law comparison, I believe it is important to reflect on this phenomenon as it is still extremely common. We are confronted with it in its most typical form when one or other policy maker wishes to evaluate how the own legal order, in its entirety or in part, compares to a number of other countries. A list of questions is drawn up on the basis of concepts and structures of the own national legal order, and then used to tackle foreign systems (often even only concepts and structures with similar names). The result, namely that the own law, the own legal arrangement is the best or the worst of all those studied, or is somewhere in the middle, is already contained in the formulation of the problem. It is therefore a terrible shame that so much work is still invested in studying the contents of the legal orders that are to be compared. Unfortunately, there are many examples of such lapses,

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especially when we consider so called 'quick' comparisons in the framework of broader legal studies or conferences. Within the framework of a discussion or publication that is not of a comparative legal nature, elements of the own national legal arrangement are then 'quickly' compared to (apparently corresponding) elements of other legal systems. Such 'comparative' views count for little, but anyone who wishes to use them should be aware that law comparison is a serious and difficult task. This often applies also to interventions at primarily national legal conferences or to articles in primarily internal legal publications, which entrust a speaker with the task of 'quickly' comparing the national law discussed during a conference or in a book with its equivalents elsewhere. Unfortunately, these forms of law comparison are usually no more than a tourist's view of another legal system. The more serious forms of pseudo-comparison of legal arrangements are sometimes founded on ignorance, on the blindness for the fact that it can be regulated 'differently' 'somewhere else'. However, pseudo-comparisons can sometimes also be the result of vile manipulation. In both cases, the scientist, the comparatist, has to stay clear of research questions, which are in essence already 'corrupt'. In an age in which universities increasingly depend on external financing and on contract research and in which all sorts of unscrupulous commercial survey bureaus and centers offer their services, this call to respect the ethics of law comparison is unfortunately not superfluous ! The danger of ethnocentrism sometimes takes strange forms, for example when it seeks refuge in an international or supranational framework. I have already mentioned earlier that the 'exogenous' point of departure of law comparison could also refer to a legal system not included in the comparison, usually a legal system of an international or a supranational nature. It is expected that this will not constitute any major problems regarding ethnocentrism if the supranational or international reference framework is based on treaties or agreements between all countries involved in the comparison. However, problems may arise if concepts and approaches are adopted from an international or a supranational context in order to involve countries in the legal comparison that were not present when these norms were worked out. But even if they were involved, some countries may have influenced far more the international or supranational instruments than others. Here again a study of the legal history of the instruments and much caution are appropriate. Another special problem that arises regards language. First of all, the language used by the comparison may refer to a certain legal order subject to the comparison. An explicit reference to a certain national framework of concepts is of course almost immediately noticeable. However, it is much more difficult to unravel a prima facie 'exogenous' phrasing in such a way as to make it obvious that the words used for the 'pre-legal' description in fact are already legally charged, thus damaging the requirement of an exogenous point of departure. Besides, the process of unraveling might reveal that no pre-legal definition or pre-legal conceptual framework is completely free of reference to a national framework. Anyhow, it is important to prevent that any reference to a certain national framework introduced via the common language used for the

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comparison, gets too great an impact on the legal comparison. A free and familiar translation, i.e. a translation that refers implicitly to the well-known national framework of reference (of the language used), should normally be avoided because it immediately creates an illusion of comparison which has not yet been verified. Foreign terminology should rather be maintained in the comparative work, but accompanied by its (literal) translation when mentioned the first time. Subsection 3. System internal comparison Quite a number of comparative legal studies set the various countries side by side and study them by using a uniform set of questions. To prevent overlapping, the results are often presented and arranged according to the various questions, with reference to the various countries included in the study. Although there is no reasonable objection to this approach, I believe it is necessary, even when the results are ultimately presented like this, also to focus attention on the mutual relations between the answers to the various questions within the same country. After all, comparative law has to take into account the (both legal and non-legal) context in which the elements to be compared are situated. If conclusions are to be drawn from law comparison, for example in the perspective of developing an adequate policy, it will often be less interesting to establish merely the differences and similarities between the legal arrangements compared than to compare the relation between the relevant elements within each of the compared systems. In other words, we advocate to compare not merely the absolute results of the questionnaire within each of the compared countries, but rather the relations the answers to the questionnaires show within each of their national contexts. That is what we call system-internal comparison. In law comparison one should not limit attention to the mere comparison of the national legal arrangements examined on the basis of specific, isolated (exogenous) questions. It is also necessary to study per country the way the answers to the various questions relate to each other. The results of this system internal comparison can, and must, be included in the legal comparison. They will often make it possible to achieve results that are much wider in scope than those achieved by merely comparing the answers to the questionnaire by the various countries.

Section 6. The outcome of the comparative research When doing law comparison, we do it with some purpose; we have explored in the first chapter the various nearby, intermediate and distant goals which may be present. That one is doing the research with a certain goal, does not mean however that the comparatist will be able to reach him/herself that goal via law comparison alone. We have already mentioned that there exists a debate as to what is the last phase of any law comparison: is it the comparison itself and explaining why we find the similitude and differences we

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find? Or is it one step further, the evaluation and the coming to policy conclusions? As we pointed out already we are inclined to prefer the first option and would like to warn for the dangers of the second. Let me illustrate this by referring to law comparison with the goal to help the legislator to make a new piece of legislation. Law comparison can reveal and analyze a number of differences between the legal arrangements concerned, especially when system internal comparison is applied. They can link up a connection between certain causes and consequences and thus they can sometimes situate the advantages and disadvantages of the various national approaches to the issues studied. However, making or legitimizing political choices is not the comparatist's task. But experience shows that this does not stop the policy makers from firing far-fetched questions at the comparatist. He/she, if need be, will have to show the mental strength and moral integrity either to adjust or to repudiate research questions that are exclusively based on irrational expectations from the policy makers. This by no means implies that law comparison should not or cannot be relevant to policy making. On the contrary. After all, sound policy implies a good view of the political options available and also a good knowledge of the ins and outs of each possible choice. In this respect law comparison can provide extremely valuable information. There is not much room for experiments when talking about legal arrangements and solutions: already the principle of equality will often oppose the application of ‘experimental’ arrangements to only one group of persons or only one subdivision of the territory. Foreign experiences are therefore so valuable as indicators when a country considers the introduction of similar legal arrangements, ...In a sense foreign experiences, or rather their processing in law comparison fulfill in relation with policy oriented research, the same function as laboratory experiments in positive sciences. If the similarities and differences in contextual circumstances are sufficiently known, some very interesting policy conclusions can be drawn from these 'experiments', from law comparison. We thus find that law comparsion can confront policy with the various aspects and consequences that characterize various scenarios tried out elsewhere. The comparatist should map these scenarios accurately, systematize them, compare them and try to explain them. The comparatist should not be expected though to make policy decisions for his own country on the basis of his scientific, comparative knowledge. The conclusions of law comparison cannot 'solve' policy questions or provide cut-and-dried political options or choices. If the comparatist does wish to formulate such options or choices, -and with his/her knowledge of the results of the own comparative research, he/she can be particularly well equipped to do so-, he/she should be aware of the fact that he/she leaves the realm of academia behind him/her and enters the political arena. It can therefore be appropriate, when publishing the results of the comparative research and the personal policy considerations of the researchers, to keep both as separately as possible. Politicians are, in view of the foregoing, sometimes disillusioned with the strictly scientific, comparative research results. They not infrequently expect from the comparatist to make clear political choices or to give 'scientific' approval to

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certain policy choices they made. Even if politicians do not ask the comparatist to make political choices or to approve these, they often implicitly identify the policy conclusion and the comparative research result. It is of course not in itself wrong to draw conclusions from law comparison, on the contrary. What is rejectable is to step directly from the research results to political conclusions. It may very well be that a comparative research shows that of the ten countries studied, only one has taken the approach A, whereas all others have gone for B. The policy makers who have ordered the comparative research, in order to enable them to choose which solution (A, B or another) to go for, may not conclude from the result 9:1 that thus the solution B is the best. They will have to examine the comparative research results AND make their own policy decision, the solution A perhaps fitting better their legislative aspirations. Of course, no comparatist, - nor any other scientist -,can be absolutely sure that his/her research results will not be abused of. However, when drafting the questionnaire etc. including making the comparative conclusions the comparatist should be aware that the research results can also be used by others, amongst which policy makers looking for scientific support. If the comparatist succeeds in using an exogenous form of questioning, places sufficient emphasis on system internal comparison and avoids ethnocentrism as much as possible, the danger that the research results may later on be manipulated by others (such as politicians), will be limited. Finally, we have to realise that results are sometimes expected from law comparison, when a non-legal comparison would be more indicated. This is often linked to the fact that in some countries only or predominantly lawyers are involved in comparative research in certain areas of life and/or that no methodological reflection has been developed in the area. I deal more at length with the relation between law comparison and other comparison, later in this section. However, it is important to emphasize that, to the extent that the comparison tends to cover non-legal issues, the use of monodisciplinary, in casu legal researchers and law research centres, may lead to a juridification and thus partial distortion of the original comparative issues. The results of the research, even if carried out strictly according to the principles governing decent law comparison, may then be rather disappointing. Assume for instance that we would like to compare the stability of marriage between a number of countries. If lawyers are confronted with that question and start carrying out legal comparative research, they may come up with differences in the conditions for marrying and divorces, other procedures to be followed. They may even come up with valid partially non purely legal explanations for the differences observed, but in fact the validity of their conclusions will be relative, as they will be related to an implicit assumption: it is the law that explains the greater or lesser extent of the stability of marriage. Every family scientist will tell that this is an assumption which probably would not stand the test of scientific empirical research. We can thus only conclude that it is important to decide, in function of the goal we want to pursue, whether from the very start we should engage in law comparison or rather in other comparative scientific research.

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Let us dwell some longer on the topic of the complex relation between law comparison and other scientific comparison. We have already pointed out that the comparatist will have to contextualize his/her findings in the various national legal orders he/she studies. The comparatist will have to pay attention to these "extra-legal" factors. The phenomenon he/shre explores has to be situated within the framework of the entire society in which it operates. When comparative law is practised it is also important to remember that legal data, legal arrangements, provisions, etc., are situated in a certain context. Without knowledge of this economic, historical, political, demographic, sociological, cultural and ideological context it is often not possible to achieve a satisfactory or sound comparison of the legal data. We are touching here one of the traditionally important themes of general law comparison. However, sometimes the relationship between law comparison and other scientific comparison shows to be more complex and of a special nature, and so it merits closer scrutiny. This is especially the case in newer areas of law, which are still evolving to a full fledged and recognized branch of law, such as consumer law, environmental law or even social security law. My postulation with regard to the relationship between other scientific comparison and law comparison would be in general, and especially for comparison in the newer branches of law: law comparison cannot exist without other comparison and other scientific comparison in many areas of life needs law comparison. That law comparison needs often other comparison, is already a consequence of the just mentioned need to contextualize the results of the comparative law research. But there is more, in order to establish a common, preferably exogenous, language to carry out the comparative research, it will be important to have appropriate tools for describing the concerned reality. These tools may be absent in earlier law comparative research, especially in new areas of law. The comparative work and the scientific conceptualization may be much more developed in other areas. If we would e.g. like to compare legal arrangements for the protection of clean air and water, we will have to define the object of our comparison. It is then obvious that other sciences and comparative researches may help us to define in a non ethnocentric way what is to be considered as ‘clean air’ or ‘clean water’. Starting from that finding, the law comparatist can then start his/her comparison. Neglecting to pay enough attention to such a definition, e.g. taking over a national legal definition of ‘clean air’ or ‘clean water’ would clearly distort already from the start the law comparison. The relation between law comparison and other scientific comparison is however not unidirectional. Very often comparative research in other sciences would be well inspired if it would pay sufficient attention to the meaning, indeed the legal meaning, of the concepts they are using. This has to do with the fact that in a number of sciences the concepts used may be more disputed than in law; it has also to do sometimes with some negligence as to the object of the comparative research. It is e.g. striking to see how often very developed statistical or economic research, pays very little attention to the comparability of the data they are using as an input. If an economist wants to examine e.g. how much countries spend for supporting the income of families of various types, he/she should be aware that the concept ‘family allowance’ is not the same in various countries and thus that comparing the figures of national expenditure for family allowances may be falsifying his/her results. Law

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comparison could help here, by establishing clearly defined (exogenous) concepts, which then can validly be used for gathering the statistical or economic data.

And finally: modesty! Many comparatists, the greatest names amongst them, have already stressed at length the very difficult task that awaits the comparatist. Many are the dangers and the traps. Many also are the expectations, the methodological principles to be respected, the skills to acquire etc. in order to come to a satisfactory result. Whether the comparative work undertaken indeed results into a satisfactory result will depend on many factors, the determining one being of course the comparatist doing a good scientific job. But it will also depend upon other factors, such as the time, persons and money available to carry out the comparative work. Any topic you may imagine may be done in varying degrees of depth; the result will have to correspond to the degree of depth of the enterprise, such is evident. Moreover, there is a correlation between the satisfaction and the goals one wants to pursue. One will indeed be more easily satisfied if the law comparison indeed brings nearer the goal which one had set forth at the beginning of the comparative enterprise. It would however be dangerous to assume that the quality of the comparative work is solely or even in a determinant way established by checking whether the goal of the comparison has indeed been attained. Here it is important to remind that in science, and thus also in the science of law comparison, all results of the properly conducted scientific activity may be valid, indeed even if they show that the compared systems and the comparison of their legal arrangements, have very little to tell in relation with the final e.g. policy goal of the comparative research. An example to illustrate this thought. One may compare the way various countries deal with homosexuals wanting to establish a stable relationship with patrimonial consequences; the result may be that in some countries marriage is open to them, in others no way of legalizing their relation may exits, whilst in yet other countries other forms of stable relationship may be recognized. One may even find good explanations for the differences. If the goal is however to provide political decision makers with indications on how to deal with the matter, the information gathered in the concerned countries may be insufficient, the patron of the comparative research disappointed. That doesn’t tell us anything about the quality of the comparative research carried out however. In order to establish that quality it will be important to examine whether the right research questions have been asked at the start, whether the comparison has been properly carried out, with respect for the established methodological principles and taking into account when choosing the methodological way to follow, the goal to attain. Whether at the end of the day, the research allowed to indeed reach that goal or not, is scientifically of secondary importance.

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Eichendorff gives the beginning comparatist the council: “Hüte dich, sei wach und munter’. One could combine this with the slogan of the founding father of the Netherlands, William the Taciturn: “Point n'est besoin d'espérer pour entreprendre, ni de réussir pour persévérer”. Indeed the comparatist should not be frightened of all the methodological imperatives he/she meets. He/she should be courageous and modest. Even the best law comparison can be improved. No law comparison is perfect. It is however important to be aware of the flaws and weaknesses of one’s law comparative work. Only then the results may be put in the right perspective. Only then others will take full profit of the comparative research results.

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Functions of comparative law and practical methodology of comparing ...................... 1

Introduction ................................................................................................................ 1 Part 1 The functions of law comparison .................................................................... 3

Section 1. The functions of inter-national law comparison ................................... 3 Section 2. The other sorts of law comparison and their functions. ...................... 10

Part 2 The methodology ........................................................................................... 12 Section 1. The debate on the methodology of law comparison. .......................... 12 Section 2 The phases of law comparison ............................................................. 13 Section 3. The countries to be compared ............................................................. 15 Section 4. Knowing and understanding ............................................................... 16 Section 5. The comparing .................................................................................... 23 Section 6. The outcome of the comparative research .......................................... 29 And finally: modesty! .......................................................................................... 33