Gordley, James --- "The Functional Method" [2012] ELECD 581; in Monateri, Giuseppe Pier (ed), "Methods of Comparative Law" (Edward Elgar Publishing, 2012)

Book Title: Methods of Comparative Law

Editor(s): Monateri, Giuseppe Pier

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849802529

Section: Chapter 5

Section Title: The Functional Method

Author(s): Gordley, James

Number of pages: 13

Extract:

5. The functional method
James Gordley



1. INTRODUCTION
If you mention the functional method to a comparative lawyer, the first text he may think
of is Einführung in die Rechtsvergleichung, by Konrad Zweigert and Hein Kötz,1
translated by Tony Weir as An Introduction to Comparative Law.2 According to the
authors, `[t]he basic method of all comparative law is that of functionality'.3 Yet they
distrusted discussions of that method.4 Indeed, as Ralf Michaels noted, despite much
discussion by others, `as a theory [the functional method] hardly exists ...'.5 In practice,
moreover, one finds a `methodological mishmash'.6
Yet many comparative lawyers accept some form of the functional method.7 The reason
is not that its theoretical foundations are clear and compelling. The reason is that they find
it helps them to make sense of some of the similarities and differences among different
legal systems. As Michaels said, `[o]ne reason for the methodological mishmash in
comparative law is that the founders of the comparative method were more pragmatically
than methodologically interested'.8 That statement implies that, on a pragmatic level,
comparative lawyers have found that by using the method, they arrive at results they
respect.
In this chapter, instead of first considering the efforts that have been made to describe or
explain the functional method, we will look at an example of the method at work. The
example, picked arbitrarily from many others, will be Arthur von Mehren's discussion of
the doctrine of ...