"The Functional Method of Comparative Law" by Ralf Michaels is a ground-breaking paper

in comparative law that introduces the functional method as an alternative approach to

comparative legal analysis. Michaels argues that traditional methods, such as historical,
doctrinal, and sociological, are limited in their ability to provide meaningful insights into the
underlying purposes and functions of legal systems. Instead, the functional method
emphasizes the examination of the social functions served by legal rules and institutions,
allowing for a deeper understanding of the similarities and differences between legal systems.

The paper provides an overview of traditional approaches to comparative law, highlighting

their weaknesses and the need for a more dynamic and context-dependent approach. The
functional method involves identifying the social interests or goals of a legal rule or
institution, examining how these interests are pursued and protected within different legal
systems, and comparing the effectiveness of different legal rules and institutions in achieving
their intended functions. Michaels also emphasizes the interdisciplinary nature of the
functional method, drawing on insights from fields like sociology, economics, and political
science to enrich our understanding of law and legal systems.

Functionalist comparative law is factual, focusing on the effects of rules rather than doctrinal
structures and arguments. It combines its factual approach with the theory that its objects
must be understood in the light of their functional relation to society. Function serves as
tertium comparationis, allowing institutions to be comparable if they are functionally
equivalent and fulfil similar functions in different legal systems. Comparative lawyers can
better understand their own discipline and gain insights into the development of functional
methods in other disciplines through an interdisciplinary approach.

Functionalist comparative law shares its origins with the Natural law tradition, with Kant
positing a separation between 'is' and 'ought' and aiming for universal law based on reason.
Max Salomon expanded on these thoughts and formulated the credo of modern functionalist
comparative law, which viewed legal science as dealing with universals, not legal norms, but
legal problems.

Darwinism, a philosophy that discarded the Aristotelian worldview, influenced all disciplines
in the nineteenth century, including sociology and the concept of function within it. Emile
Durkheim developed a non-teleological functionalism to separate functions from origins and
emphasize the contingent goals of individuals. Durkheim believed that institutions' existence
and function are interrelated, with causes often determining functions and functions
determining the origin and persistence of institutions. Some elements of Durkheim's
functionalism reappear in functionalist comparative law, such as the scientific character and
objectivity of research, a perception of society as a whole, the idea of societies having needs,
and a focus on observable facts.

Comparative law has been largely uninterested in Durkheimian sociology due to its reliance
on instrumentalism, which posits that law fulfills functions and meets societal needs. This
approach, influenced by European comparative law, was particularly attractive to the law and
development movement, which aimed to use law to aid economic progress in developing
countries. However, comparative law faces challenges, such as researchers placing naive faith
in the effectiveness of legal institutions and being insufficiently aware of non-legal elements
of success or failure, such as cultural differences. The complexity of social engineering
through law needs to be integrated into comparative law.
The development of social sciences has led to the disjunction of sociological functionalism
from comparative law. The work of Radcliffe-Browne, Malinowski, and Parsons has had little
direct response in comparative law, as their interest in a theory of societal systems was not
congruent with the search for a method. Critics argue that functionalism is intrinsically
teleological, unable to fulfill Durkheim's postulate of a value-free social science, and unable
to account for culture. After these critiques, functionalism lost ground and became replaced
by cultural and hermeneutic methods in sociology and social anthropology.

Functionalism, a philosophical approach, posits that since Kant proposed laws of nature as
human constructs, there has been a shift from focusing on substance to understanding them in
their functional relation to particular viewpoints. This shift has two advantages: it does not
require recognizing the essence of a particular element but rather the totality of all numbers.
It also allows for the conceiving of groups of elements without the loss of specificity that
comes with traditional classifications requiring abstraction.

Comparative law has long been influenced by the idea of functional equivalence, which
suggests that similar problems can lead to different solutions. However, this idea has been
criticized for its lack of uniformity of values beyond the universality of problems and for its
naïve relation between the problem and the institution.

Functionalist comparative law is an undertheorized approach that combines bits and pieces
from various traditions, which are similar in their decline. The functional method should be
measured by its functionality rather than its origins or intentions, focusing on the functions
and dysfunctions of the concept of function, including its latent functions, in the production
of comparative law knowledge.

Functionalism is an epistemological approach that assumes legal rules are culturally

embedded, focusing on the functional relations between institutions and problems. It is not
the only available method for understanding a legal system, but it takes an observer's
perspective as an alternative to the participant's perspective inherent in cultural approaches.
Functionalists believe that problems and institutions mutually constitute each other, but there
are issues with functionalism as a social science or philosophy.

The comparative function, or tertium comparationis, is a method of comparing societal needs

and problems, but the universality of problems remains unclear. Comparativeists try to avoid
these challenges by restricting analysis to societies at similar stages of development and
value-neutral areas of the law. However, this approach often leads to more complex
comparisons and a discarded functional adaptionism.

To differentiate between levels of analysis, it is more fruitful to assume that certain abstract
problems are universal, as all societies face them as societies. This allows for a more complex
and richer functional analysis. The praesumptio similitudinis, a presumption of similarity in
comparative law, suggests that different societies face similar needs and must have
functionally equivalent institutions to survive. However, this statement has been criticized for
violating scientific method requirements, ideological neutrality requirements, and being
reductionist.

Equivalence functionalism, which includes similarity, functional, and equivalent linkages, is

associated with this method. The challenge expressed by the functionalist comparison is
formalized in this system-building, however it might be a better, more suitable system than
others.

Comparability Because functionally comparable institutions are equal in value with regard to
that function, functionalism offers limited instruments for evaluation. But this intentional
focus on functional equivalency rather than similarity or difference is how complexity can be
conquered without losing clarity. Functionalist comparison's evaluation of its findings reveals
its limitations because comparability and evaluation criteria cannot be the same.
The functional method, which is praised for its capacity to find commonalities across laws
that appear to be quite different, has been applied to assess and harmonize laws. Nevertheless,
there are two issues with this argument: it is ill-suited to establish doctrinal legal principles
and is unable to identify the optimal legal framework. On the other hand, equivalency
functionalism offers grounds against unification since it makes the assumption that each legal
institution serves a variety of purposes within its own system.

In many respects, functional analysis is crucial. It can be used to analyze foreign law, our
own legal system, and law in general as well as to tolerate and accept it. A home bias against
foreign law can be overcome by functionalist comparative law, especially in the area of
conflict of laws. It can also be useful in evaluating foreign law, particularly in cases where a
legal system maintains its cultural independence.

Functionalism is unhelpful in evaluating functionality and purposes, fundamentally criticizing

law, understanding the status quo, conceptualizing interdependence and overlap, and
accounting for tensions within legal systems. Although there is merit to criticisms of the
functional method directed at mainstream comparative law, it is questionable if any other
comparative legal method can perform more admirably in these domains.

Naman Gupta
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