Paradigms in Modern European Comparative Law

Balázs Fekete is Associate Professor at the Eötvös Loránd University Faculty of Law and Senior Research Fellow at the Centre of Social Sciences Institute for Legal Studies, Hungary.

Introduction: Scope and Subject
I. The History of Comparative Law and a History of Comparative Law
II. The Dominance of Descriptive Linearity
III. Comparative Law as a Discipline and the Application of Comparative Methods in Law
IV. Ancient or Modern History of Comparative Law Thinking
V. Comparative Law and Comparative Constitutional Law
VI. A Mezzo Perspective Approach

1. The History of Comparative Law and Kuhn’s Oeuvre
I. Studying Science as a Historical Phenomenon: Some Preliminaries
A. On the Necessity of an Elaborated Historical Approach
B. On the Historical Character of Scientific Development
C. Choosing a Proper Starting Point – The Importance of the Definition of Science
II. Applying Kuhn’s Legacy to Understand the History of Comparative Legal Studies
A. The History of Science and Kuhn’s Paradigm Shift
B. The Very First Problem: How to Apply Kuhn’s Findings to Legal Scholarship
C. Which Kuhn to Apply for This Study?
D. The Novelty of Kuhn’s Work from the Perspective of Legal Scholarship
E. Refining the Kuhnian Vocabulary: Science
F. Refining the Kuhnian Vocabulary: Parallel Paradigms
G. Refining the Kuhnian Vocabulary: Paradigm
H. Refining the Kuhnian Vocabulary: Paradigm Shift
III. Lessons from Kuhn in the Historiography of Legal Scholarship

2. Historical and Comparative Jurisprudence
I. Introduction: The Centuries-long Pre-paradigm Period and the Rise of the First Paradigm
II. Prologue: The Modern Precursors and the Pre-Paradigm Period
A. Seventeenth- and Eighteenth-century Examples of the Use of Comparative Methods
B. Early Nineteenth-century Precursors: End of the Pre-paradigm Period
C. The Relevance of the Early-Modern Pre-paradigm Period
III. General Background: The Rise of Positivism and the Idea of Evolution
IV. Historical and Comparative Jurisprudence – The Emergence of the Paradigm in England
A. The Fusion of the Historical and Comparative Methods in Maine’s Ancient Law
B. The Development of Historical and Comparative Jurisprudence
V. From Ethnologische Jurisprudenz to Vergleichende Rechtswissenschaft – The Birth of a Paradigm in Germany
A. The Beginning: Ethnological Perspectives in the Legal Scholarship
B. Joseph Kohler’s General Philosophy of Law
VI. The First Paradigm of Modern Comparative Law: A Summary

3. The Paradigm of Droit Comparé
I. Fin-de-siècle Atmosphere
II. A New Wave of Institutionalisation
III. The 1900 Paris Congress of Comparative Law
IV. The Establishment of the New Paradigm
A. Comparative Law as an Autonomous Field of Legal Scholarship
B. Comparative Law and Common Legislative Law
i. The New Methodological Principles of Comparative Law – Lambert’s Interpretation
ii. New Emphases in Lambert’s Oeuvre – The Start of Puzzle-solving Research
V. The Development of the Paradigm – Functionalism, Global Law and Scepticism
A. The ‘Re-founding’ of German Comparative Law
B. Developing the Institutional Background and the Attraction of ‘Global Law’
C. The English Initiatives of the Period – Deviating from Maine’s Heritage
VI. Characteristics of the Second Paradigm

4. The Third Paradigm – Post-World War II Comparative Law
I. Introductory Remarks: The New World Order and Comparative Law Scholarship
II. The Taxonomy of the World’s Legal Orders
A. The First New Try: The Arminjon–Nolde–Wolff Manual
B. The Attraction of Ideology and Ideals – The Typology of René David
C. The Style of Legal Families – The Taxonomy of Konrad Zweigert
D. The Concept of the Encyclopedia
E. The Perspectives of a Multi-level Classification
F. Patterns and Dynamics in Law – The Innovation of Ugo Mattei
G. The Classification of Legal Orders in Post-World War II Comparative Law
III. The Renewal of Comparative Law Methodology: The Victory of Functionalism
A. Conceptual Discussion
B. The Earliest Attempts to Apply the Idea of Functionalism in Comparative Law
i. Preliminaries
ii. Functionalism and Legal Principles
C. The Fundamental Principles of Functionalist Methodology
i. Historical Roots of Functionalism: Jhering’s Method as an Ideal and as a Programme
ii. The Research Programme of Comparative Law Functionalism
D. The ‘Case-oriented Factual Approach’ – The North-American Approach to Functionalism
E. Criticism of Comparative Law Functionalism
F. Common Core and Ius Commune Casebooks Projects
IV. The Third Paradigm

5. New Trends in Contemporary Comparative Law: Towards a Paradigm Shift?
I. A Changing Scholarly Landscape
II. A Cultural Turn in Comparative Law?
A. Cultural Claims in Comparative Law: The Example of Legrand
B. The Proliferation of the Use of Legal Culture: Trends and Problems
i. Legal Culture as Background of Law
ii. Legal Culture as Interactions Around Law
iii. Legal Culture as a Sum of Attitudes Towards Law
C. Three Typical Inconsistencies in the Application of Legal Culture in Comparative Law
i. Confusion of Different Understandings in the Same Study
ii. Under-theorisation of Legal Culture
iii. Over-theorisation of Legal Culture
III. The Decline of Methodological Exclusivity in Comparative Law Thinking
A. The Functionalist-Culturalist Divide
B. The Rise of Methodological Tolerance: The Recognition of a Methodological Plurality
IV. Paradigm Shift in Contemporary Comparative Law?
Concluding Thoughts
I. On the Validity of this Research, with Special Regard to the Relevance of Kuhn’s Ideas
II. On the Utility of having a Single Book on the History of Modern European Comparative Law
III. On the Recent Perspectives of Comparative Law