Örücü, A. Esin --- "Methodology of Comparative Law" [2006] ELECD 192; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law" (Edward Elgar Publishing, 2006)

Book Title: Elgar Encyclopedia of Comparative Law

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420130

Section: Chapter 41

Section Title: Methodology of Comparative Law

Author(s): Örücü, A. Esin

Number of pages: 13

Extract:

41 Methodology of comparative law*
A. Esin Örücü


The fact that any one thing can be compared with any other thing has not
prevented wide discussion of the concepts `comparability' and `method-
ology' by comparative lawyers. The discussion starts with the claim that
`things to be compared must be comparable', and revolves around words
`like' and `similar'. `Like must be compared with like' and `similia similibus',
these being well-established maxims of comparative law. What is `like' in
law? Even if what `like' means can be determined, how much `like' do things
have to be to be `comparable'? What is meant by `only comparables can be
meaningfully compared' and by concepts such as `sufficiently comparable',
`reasonably comparable' or `fruitfully comparable'?
It is also claimed that `comparability' carries the requirement that `there
be a variable common to each instance and that the variable have the same
meaning for each instance' (Merryman, 1974, p. 92; Zelditch, 1971) and
that `comparisons can be useful only if the legal institutions under investi-
gation are naturally or functionally comparable' (Zweigert and Kötz, 1998,
p. 34).
In 1900, the assumption underlying the Paris Congress, presented as the
starting point of methodological and scientific comparative law proper,
might have been that only `similar' things could be compared, but is this the
approach we take today? For example, would comparing diverse legal
systems, legal institutions or legal rules and coming to the conclusion that
they are not `like', not be `meaningful' or `fruitful'?
Comparative law scholars ...