2

Asking the Right Question

B
EFORE TURNING TO the details of comparative law methods it is
important to say something about the research process itself. A piece
of research, including of course research in comparative legal stud-
ies, has as its objective the discovery of knowledge. This can be achieved
only through the posing of a question. A research thesis should therefore
be a detailed answer to a clear and concise question. It follows from this
assertion that the ‘best way of beginning a piece of research in social sci-
ence consists in striving to set out the project in the form of an originating
question’. For it is by asking this question that, according to Quivy and
Van Campenhoudt, ‘the researcher attempts to express as precisely as pos-
sible what he is researching to know, to elucidate, to better understand’ and
thus the ‘originating question will act as the first point of entry into the
research’.1 As these two Belgian authors advise, this originating question,
in order to fulfil its function, must have a number of fundamental quali-
ties2 which, before turning to the comparison and law questions, need to
be examined in some detail.

I. FRAMING THE RIGHT QUESTION

The first quality is that the question must be correctly framed so as to define
as precisely as possible the area to be researched. If all pieces of research
are answers to posed questions, it should be evident that a badly posed
question could result in a research thesis at best unclear of its own objec-
tive or at worst superficial in form and substance. What must be avoided
at all costs is a research project that consists of an identified area but no
identified question, for the researcher will pursue an investigation that is
entirely descriptive and probably with few new insights. An originating
question should be the means of discovering if the investigation is original
in orientation. In addition, the framing of the project in terms of a question
will establish an abstract structure for the thesis itself: the introduction will

1 Quivy and Van Campenhoudt (1995: 35).

2 Ibid: 24–36.
26 Asking the Right Question

consist of the question to be pursued; the main part will be the research and
analysis; the conclusion will be the answer to the question posed.
In order to frame a suitable question in comparative legal studies one
must of course have a good knowledge of the theories, methods and pur-
poses of comparison (see Chapter 3) and the aspects or focal points of
legal knowledge that one is going to use as the objects of comparison (see
Chapter 8). Consequently it is at this stage difficult to examine in much fur-
ther depth how one should go about framing a suitable question. Yet there
are a number of general points that might usefully be made. One in par-
ticular is that any research question should have built into it, either directly
or by implication, the reason why a comparative approach is fundamental
if a satisfactory response to the research question is to be provided. Here it
is necessary to recall that a comparative approach is to put together several
objects or several elements of one or more objects in order to examine the
degrees of similarity and difference so as to be able to draw conclusions
from them that the analysis of each of them alone would not necessarily
have allowed one to draw (see Chapter 1). Thus the conclusion to any
research project in comparative law should be one that is obtainable only
through the bringing together of two or more objects of comparison and
consequently the research question should reflect this necessity.

II. LITERATURE REVIEW AND THE RESEARCH QUESTION

A second general point is that it will probably not be possible to frame a

research question without undertaking some serious preliminary reading
and research. The researcher will need to undertake a literature review.
Now a literature review is not to be confused with the review of a book. A
book review is a critical piece aimed at the public on a particular book by
a particular author (or authors); a literature review, in contrast, is a critical
overview of the literature on a particular topic. It aims ‘to develop skills and
abilities of the researcher’3 as well as, if the review is to be reduced to writ-
ing, informing the reader about the topic under review. A literature review
has been defined as the ‘selection of available documents (both published
and unpublished) on the topic, which contain information, ideas, data
and evidence written from a particular standpoint to fulfil certain aims or
express certain views on the nature of the topic and how it is to be inves-
tigated, and the effective evaluation of these documents in relation to the
research being proposed’.4 One should add, of course, that in the case of
research in law the review will comprehend equally official legal texts such

3 Hart (1998: 26).

4 Ibid: 13.
 Coherence and Non-coherence 27

as case law reports, legislation, doctrinal commentary, law reform reports

and so on.
As Chris Hart points out, the researcher needs to know about the con-
tributions others have made to the topic of research under investigation.5
Indeed the reviewer will need to identify the key writers and experts in
the area being investigated. However the review is not just a descriptive
listing of the literature; the researcher will have to distinguish the relevant
material from the irrelevant, and this can be done only by reference to a
research question. Consequently the literature review and the framing of
the research question are intimately related and form a vital preliminary
part of any serious research work.
Furthermore the literature review will need to distinguish the good from
the not so good texts and this selection will require the researcher to employ
evaluative, critical and analytical skills. The reviewer will need critically to
engage with the literature; that is to say, the researcher will not just describe
the literature but bring to it an analytical perspective that will highlight
the good and bad aspects. In framing the research question, then, the cur-
rent knowledge will need to be described and explained in the review and
gaps in the existing knowledge and research will have to be identified. This
framing should then be stimulated by the formulation of new insights with
respect to the directions of research and the identification of the most effec-
tive research methods and comparative methods (see following chapters).
However, as we shall see later in this chapter and in subsequent ones, to
develop a critical perspective the researcher must be aware not just of her
orientation, but equally her theoretical and methodological frameworks.
Consequently a researcher who feels that they may lack a proper apprecia-
tion of these theory and method questions in legal studies should extend
their literature research so as to include literature which covers these areas.
Indeed it may even be necessary to conduct a preliminary literature review
of the theory and method material about law in general. One cannot, in
other words, undertake comparative legal studies without a basic ground-
ing in legal theory, legal method and general research methods.

III. COHERENCE AND NON-COHERENCE

It has been suggested that there are two competing tensions when construct-
ing a literature review.6 These are the need to relate the existing research
to illustrate the importance and relevance to the field, but also the need to
demonstrate original contribution. In order to fulfil the former criterion,
the reviewer will need to demonstrate how the literature relates one piece

5 Ibid: 26–27.
6 Locke and Golden-Biddle (1997).
28 Asking the Right Question

to another. Is there a coherence to be found in the literature being reviewed

and, if so, is this coherence one of which all the writers in the area are
aware? In comparative legal studies the importance of interdisciplinarity
has already been stressed, and so it could well be that researchers work-
ing in different fields are unaware that the work points to common ideas
that have not been explored (synthesised coherence). For example, as we
shall see in the next chapter, the problem of ‘universalisation’ in compara-
tive legal studies is a problem that has been encountered, and discussed, in
comparative literature and comparative theology.
However, whereas the need for a ‘synthesised coherence’ points to
researchers working in different fields, whose work is directed to yet
undiscovered common points, ‘progressive coherence’ indicates researchers
working within the same field operating with shared theoretical perspec-
tives and methods.7 In other words, the literature reveals research or schol-
arly programmes that have advanced over time and which point to a field
with developed and focused lines of enquiry. Of course in contrast to these
two coherence possibilities there may be complete discord or non-coherence
in the literature. The works referenced belong to a common research pro-
gramme but are linked by disagreement, that is to say contradictory theo-
ries and perspectives.8
In comparative legal studies there is an added difficulty that the researcher
will probably need to divide the literature review into two parts (unless the
research project is directly on the comparative legal studies literature). If
the researcher is looking to research into a particular field of law—for
example an aspect of contract, property, family or public law—there will
need to be a review of the work in this particular area. This may (or may
not) reveal coherence or non-coherence. Equally, however, the reviewer
will have to do a literature review of the work on comparative law theory
and methodology, and this review may well reveal a complex situation in
which there is both synthesised and progressive coherence, but equally
some non-coherence in that that the field is characterised by a number of
intense debates (see following chapters). In framing the research question,
then, there will be a need to accommodate the increasing amount of litera-
ture on the theory and method of comparison. This accommodation can-
not perhaps be directly incorporated into the question itself if the research
is focused on a particular subject area of law such as product liability or
whatever. But the researcher will need to be aware that the public (that is
to say the readers of the finalised research publication) must be informed
that any project involving comparative legal studies is particularly method
sensitive. As will be seen in later chapters, different methodological schemes
can produce different forms of knowledge.

7 Ibid.
8 Ibid.
 Reflecting on the Literature 29

IV. REFLECTING ON THE LITERATURE

If the literature review is a fundamental preliminary stage to any research

project and is to be regarded as an exercise intimately bound up with the
formulation of the research question, how should the literature itself be
‘problematised’? That is to say how should it be handled at this preliminary
stage? One response is, first, to categorise the deficient literature into three
main groups, namely incomplete, inadequate and incommensurable.9
When one classes the literature as incomplete, the reviewer by definition
is saying that it is unfinished and that further study is required. The litera-
ture review is highlighting the gaps and this should feed directly into the
framing of a research question. Such a question will be aimed at filling a
gap. However if the literature is inadequate, the problem is rather different.
Here the emphasis is not on gaps as such, but incompleteness of perspec-
tives. In other words, work has been overlooked which is relevant and
important to better understand the subject area, and the literature review
can contribute by illuminating perspectives that have been overlooked by
introducing alternative perspectives. Such an alternative perspective will be
the foundation for the framing of a research question. Thus for example it
could be argued that the literature concerning methodology in comparative
law has for a long period been, if not inadequate, at least incomplete. There
has been little detailed work on the alternatives to the functional method.10
This in turn might generate a research question which simply asks: what are
the alternatives to the functional method in comparative legal studies?
If the literature is incommensurable, then there is not just a problem with
perspectives; the literature, or some of it, is just wrong. That is to say that
the existing literature presents misguided perspectives or is seen as having
taken a wrong direction. The research question in this situation will be one
reacting to or attempting to correct the wrong perspective or direction.11
These categories are, however, only useful starting points when it comes
to a discipline like law, in that it is not always easy to assert that the lit-
erature is wrong as such. Sometimes, of course, this will be possible, even
perhaps with respect to authoritative texts. Thus for example it might be
possible to assert that a judge or a jurist has given a wrong interpretation
of this or that law. It would appear, for instance, that the English cases in
which an equitable doctrine of mistake in contract was recognised are now
to be regarded as wrong, and should be ignored.12 At the level of doctri-
nal writing, James Whitman has asserted that William Ewald is ‘wrong’
when he claims that comparatists must adopt an ‘inner’ perspective when

9 Ibid. This section is based on this key article.

10 See further Samuel (2009a).
11 An example would be Jeffrey Hackney’s criticism of attempts by various comparative
lawyers to make the common law conform to Roman law taxonomy: Hackney (1997).
12 The Great Peace [2003] QB 679.
30 Asking the Right Question

trying to understand another legal system.13 Similarly Pierre Legrand claims

that Zweigert and Kötz are wrong when they advocate a presumption of
similarity when undertaking a comparative exercise in law; one should,
says Legrand, presume difference because comparison itself is about dif-
ference (why compare things that are the same?).14 These assertions, along
with others in law, are not open to falsification—they cannot be tested in
the same way as a scientific hypothesis—and consequently the emphasis
is likely to be on incompleteness and inadequacy, rather than wrongness.
Thus the researcher cannot dismiss the work of Ewald in the light of
Whitman’s claim—at least certainly not at the literature review stage. What
the reviewer of the literature has to register is that there is an on-going
debate with respect to whether one should adopt an inner or outer perspec-
tive when approaching another legal system (see Chapter 3). The same is
true with respect to the Legrand and Zweigert and Kötz debate.
Another criterion for an effective literature review, and an effective origi-
nal research question, is the ability of the researcher to describe the whole
domain of a subject and yet be able to look at areas within that domain.15
One needs to develop a research imagination. This is not easily acquired
and takes time to develop. It involves being open to ideas regardless of
how or where they originated and being able to question and to scrutinise
these ideas, methods and arguments regardless of who proposed them.16
Can links be made between the different ideas and can the ideas themselves
be followed to see where they might lead? For example the researcher
who is focusing on one aspect of contract—say formation or change of
circumstances—cannot focus just on the literature concerning this par-
ticular topic. A micro-comparison will always involve a knowledge of the
literature at a macro-level (see Chapter 3); and so if the comparison on this
aspect of contract is to be, for example, between Germany and England
the researcher will need to expand the literature review at least to the level
of German and English law in general. The researcher will need to inform
himself on the German and English legal mentalities (Chapter 7). Indeed,
because it is a comparative project, the researcher will need to go beyond
even this level (see Chapter 8). In short, it is about being scholarly in the
approach to the literature review.
A literature review is, then, more than just a mere listing and description
of the books and articles on a specific topic. The contents of the books and
articles are to be studied and analysed, so as to bring out the various meth-
ods used by the authors in each text. But the reviewer needs to be aware
of the methods he or she is going to use when engaging with the literature
under review. It is via these methods, which of course will be developed

13 Whitman (2003).
14 See eg Legrand (2009a: 107); and see generally Legrand (2003).
15 Hart (1998: 29–43).
16 Ibid: 30.
 Clarity of the Research Question 31

later in this chapter and the chapters that follow, that one discovers gaps in
the literature, thus allowing the reviewer to make his or her original con-
tribution. However this contribution can be effective only if it is guided by
suitable originating research question.

Need for synthesised

coherence (across
disciplines)?
Coherent?

Is there progressive
coherence?
Identified literature

Non-coherent? Incommensurable?

Figure 2.1: Literature Review (Locke and Golden-Biddle)

V. CLARITY OF THE RESEARCH QUESTION

The translation of a research project into an originating question will be

of value only if the question itself is correctly formulated.17 The question
must, accordingly, not be too vague or too complex, nor may it lack feasi-
bility, relevancy or credibility.
A research question will be too vague if it operates at too high level of
abstraction and uses expressions that are ill-defined. For example if one
were to ask the following question, it would be too vague.18 Is the law of
banking in England and in France satisfactory? It is not that this question
is incapable of an answer, or indeed of motivating a research project. The
problem is that the limits are not well-defined.19 What is meant by the
‘law of banking’? Does it include contract, tort, property and trusts? If so
would this not make the project too large in scope and too imprecise with
regard to the object of study? Equally, there is a problem with ‘satisfactory’.
Satisfactory in what way: in an economic, social, political or moral way, or
in some other way that is a combination of some or all of these? The term
is too vague to be of any value in a research project.
At the other extreme a question can be too complex, if in order to give it
a comprehensive answer it requires the researcher to become too involved
in a range of subjects, methods and philosophies all operating at different

17 Quivy and Van Campenhoudt (1995: 24).

18 Ibid: 25.
19 Ibid: 26.
32 Asking the Right Question

levels. For example the following question would be one that is far too
complex. Does the law of trusts in England and its functional equivalents
in Germany facilitate the maintenance of tax privileges amongst particular
social groups while at the same time increasing the risk of discriminating
against other social minority groups in relation not only to their non-
pecuniary contributions with respect to trust property, but also to their
activities in lobbying for better social conditions? Again it is not that there
are no interesting research topics contained within the question. Nor is the
problem one of vagueness, since the terms employed are not imprecise, and
each of them could be said to have fairly well-defined limits. The problem
is one of over-complexity: there are far too many issues, disciplines and
assumptions contained in the question.
In addition to these two broad dangers a research question must be feasi-
ble.20 That is to say, it must be one that the particular researcher can under-
take in terms of practicability, as measured by his or her own abilities and
by time and resources. For example, asking a question such as: do all the
social systems of the world share a common idea of contract (or ownership
or whatever)? This kind of question can only be answered if the researcher
has unlimited time and budget, and an extraordinary ability to read a huge
range of languages. Even seemingly less ambitious projects such as a com-
parison of all the legal procedural systems in Europe can lack feasibility for
the great majority of jurists. Most researchers simply do not read all of the
European languages and, even if they can, they may not have the required
depth of knowledge of the languages to allow them to research and to
answer satisfactorily the question. When these large projects are attempted,
they usually end up as superficial and trite dissertations.
A research question can also lack relevancy. For example, a question
which lacks social science research relevance is one such as this: are the
various laws regulating abortion in (say) France, Germany, Ireland and
the United Kingdom morally just? The problem with this question is that
it does not take as its basis the organisation of the regulating laws or the
impact of the manner in which they are conceived and operate. Instead
it is making a judgment of value which raises questions of moral, social
and political philosophy.21 Now it may be that the researcher is an expert
moral, social and political philosopher, as well as being qualified to investi-
gate medical law. Yet there is a real danger that the thesis will end up as a
vehicle for the researcher’s own values, since the object in the question is as
much morality as the regulation system. No doubt it is possible to examine
abortion laws in relation to all the various theories of morality and justice
and perhaps this could be done in an objective and rigorous way. However,

20 Ibid: 27–28.
21 Ibid: 29–31.
 Clarity of the Research Question 33

it would need a particularly well-trained and experienced researcher, able

to cut him or herself off from value pre-judgments that would undermine
the objectivity of the research. Similar questions lacking relevance are these.
Do employers exploit workers?22 What changes over the next 20 years will
affect the organisation of teaching?23 This last question lacks relevance
because it is focusing on something that does not yet exist and whose foun-
dations cannot possibly be predicted.24
Finally a research question must be credible. That is to say it must be
capable of giving rise to a credible answer. Thus, to put it into popular
language, if one asks a silly question then one will get a silly answer. A ques-
tion lacking research credibility is one such as this. How many angels can
dance on a pinhead? This might seem profound, but it is quite incapable
of giving rise to a research project, since there is nothing to research except
meaningless speculation. Yet even a less abstract question can still attract
the criticism of a lack of credibility. For example if one were to propose the
following research question it would lack credibility despite the fact that the
subject matter is not one that invites meaningless speculation. What would
it be like to be a waste-paper basket in an English solicitor’s office, as com-
pared with one in a French notaire’s office? The question lacks credibility
because it suggests that an inert object has human capabilities. The actual
subject matter implied by the question is, perhaps, quite interesting from a
comparative law point of view, but one cannot give a sensible answer to the
actual question itself. It is very badly formulated.

What is your
research
question?

Too vague or too

complex?

Lacks feasability? Lacks relevancy? Lacks credibility?

Figure 2.2: Research Question (Quivy and Van Campenhoudt)

22 Ibid: 31.
23 Ibid: 32.
24 Ibid: 32–33.
34 Asking the Right Question

VI. TESTING AND REFORMULATING THE RESEARCH QUESTION

An originating question is not written in stone. It can and indeed should act
as a vehicle for beginning an investigation, but the investigation may itself
reveal that the question is unsatisfactory. If this happens, then the question
can be reformulated into a more precise question or at least one that better
reflects the direction of the research. For example, the originating ques-
tion may lead the researcher into a field of investigation that turns out to
be too wide and (or) complex for a thesis based on the question as posed.
The project, as envisaged in the original question, might lack feasibility and
might need to be narrowed down considerably. A comparative law research
project into, say, legal procedure, and covering all of the EU systems, may
prove beyond the ability of the researcher given time constraints, linguistic
ability and availability of source materials. In this situation the researcher
might wish to consider investigating the procedural systems of say just two
EU countries and reformulating the original question accordingly. Put into
structural form, one is readjusting, via the originating question, the intel-
lectus (knowing subject) and the res (object of research) so as to reflect the
feasibility, the relevance the credibility or the accuracy of the project.

Original research
question

Does original
question need Non law literature
revising?

Comparative law
Law literature
literature

Figure 2.3: Processing and Revising the Research Question

VII. ORIENTATION

Having framed a suitable originating question, the next step is to embark

upon an exploration of the material which forms the research substance
of the question posed. It is at this stage, however, that the researcher must
begin to be clear about the point of view or orientation to be adopted. Of
 Orientation 35

course, such a point of view will no doubt have informed the originating
question, and thus it is somewhat artificial to locate the position of the
enquiring mind (intellectus) at this second stage. Nevertheless it is of impor-
tance that the researcher be clear about the orientation to be adopted and
while this will be examined in much more detail in the chapters to follow
some general points might be made at this preliminary (research question)
stage.
The primary distinction which is often made with regard to any science
or knowledge discourse is whether it is to be approached from an internal
or an external point of view.25 Is the object of the research project to be
analysed from the position of a legal mind, that is to say from the posi-
tion of a jurist working from within law? Or is it to be approached from a
discourse position outside of law, say from the position of a sociologist or
economist? The difference is important, at least at this initial stage, since
the former will, seemingly, require an expertise in law while the latter will,
in addition, require expertise in some other discipline such as sociology
or economics. It should be evident that a researcher who wishes to adopt
an external standpoint ought to have sufficient expertise in the specialised
field that will act as the intellectual model for the external framework.
Amateurism can be fatal to a serious research project and can result in work
that is pretentious and ridiculous and (or) full of errors.26
In addition to the distinction between the external and internal—itself a
distinction that is by no means clear-cut or unproblematic27—distinctions
can also be made within either of these viewpoints. As one French law
professor has pointed out, ‘different categories of jurists do not use
exactly the same knowledge’, since ‘everything depends upon the power
which they appear to have’.28 Judges and legislators, unlike the barrister
or solicitor (or advocate), do not for example have to worry about their
clients. Practitioners, unlike professors, do not necessarily need a global
and interrelated view of law. These distinctions might not directly affect
the researcher, but legal researchers will have to be aware of their own
epistemological model and this awareness can only be achieved through
an understanding of the whole spectrum of knowledge perspectives.
With respect to an external orientation, Roger Cotterrell has observed
that the ‘numerous approaches to legal analysis which can be categorised
as sociological in the broadest sense are unified only by their deliberate
self-distancing from the professional viewpoint of the lawyer’. Law, he
says, must always be ‘viewed “from the outside”, from the perspective

25 See eg Hedley (2009). See also McCrudden (2006).

26 Sokal and Bricmont (1998).
27 Riles (2006).
28 Atias (1994: 21).
36 Asking the Right Question

of an observer of legal institutions, doctrine and behaviour, rather than

that of a participant, although participants’ perceptions may be taken
into account as data for the observer’. The researcher’s motive is one ‘of
adopting an epistemological standpoint from which a radical critique
of and challenging to lawyers’ professional conceptions of law becomes
possible’.29 Cotterrell is talking here of the sociological perspective, but
his model can mutatis mutandis be transposed to other external disci-
plines such as political science, economics or philosophy. The enquiring
mind (intellectus) is distancing itself from the object of enquiry (res) in
the sense that might be described as more deliberately speculative. That is
to say as an intellectual end in itself—although one no doubt with serious
social science implications—and not simply as a means of solving some
specific legal problem.30 This is not to say, of course, that such a deliber-
ate change of standpoint will not impact on the internal viewpoints. The
influence of American Realism on common law thinking is surely undeni-
able31 and the law and economics movement in the US certainly moved
from the law faculty to the courtroom.32
As for the internal view of the law, it would, as Christian Atias asserts,
equally be wrong to think that there is a single epistemological model
shared by all lawyers. Indeed epistemological diversity is also to be found in
the natural sciences. The teaching of science needs to be distinguished from
the laboratory practice. For the teacher ‘has to master the contents of what
is to be taught’, and this involves ‘a more general vision of the discipline to
be taught, in terms of the organising principles, the areas of thought, the
conceptual threads’. The teacher needs to see ‘the discipline not as a patch-
work without unity, each element corresponding to a concept, but as an
expressive mosaic made up of concepts each relating one to another’.33 This
general distinction between the teaching and practice of law is reflected in
law in a number of ways, not least perhaps in the difference between the
common law (practice) and civil (Continental) law (university) traditions.
However, in addition to this distinction several other different internal
viewpoints can be identified.
In the Continental systems, codification has gone some way in blurring
the differences between the various internal viewpoints in that it is the
basic text for practitioners, judges, professors and students. Nevertheless
the view of the judge can still be distinguished from other viewpoints in as

29 Cotterrell (1983: 242, 243).

30 Cf Blanché (1983: 33).
31 See Twining (1985).
32 The movement had some influence on UK judges as well: see eg Samuel (2008b: 67–69,

84–89).
33 Astolfi and Develay (1996: 114).
 Orientation 37

much as the judge has to make a decision with real consequences for the
parties in any case that is submitted to him or her.34 The judge cannot refuse
to reach a decision on the ground that the law is obscure or the facts too
difficult.35 In arriving at such a decision the judge has to take account of a
range of factors, for example his or her own subjective view of the equity
and justice of the situation, the demands of legal certainty, the respect for
constitutional rights, the wider effects of any decision, perceived policy
considerations, the desire to avoid appeal and (or) doctrinal criticism and
the appropriate methodology to be adopted. In addition to these factors,
moving to a more external orientation, the legal researcher will in addition
have to take into account some further questions.36 What kind of education
has the judge received? What was his or her specialisation background?
What is the social and political background?
In contrast to the judge, the practitioner is often able to take a much nar-
rower view of the law. The practitioner will for the most part be seeking
solutions that are in the best interests of his or her clients. This may often
involve skill in argumentation and interpretation and so analogy, induction,
deduction, comparison and so on will be of primary importance as a mat-
ter of technique. Equally the building up of particular and impressionistic
factual images is of importance in persuading the court to adopt this or that
line of cases or this or that interpretation of a text.37 As Atias observes, these
methods and procedures do not have their source as such in legal texts; they
are part of a habitus which has its roots in the professional culture devel-
oped over generations.38 The researcher should, of course, be aware of this
professional culture when reflecting generally on legal knowledge.
Unlike the practitioner and the judge, the main preoccupation of the
legislator is with the translation of political, economic, scientific and social
programmes into textual propositions. In turn however this will involve the
use of a vast range of empirical information upon which the programmes
are founded. The legislator, in short, will see law as arising out of a mass
of human data itself having ‘the most diverse’ sources.39 Despite this plu-
rality of empirical data, the actual epistemological model of law used by
legislators will be relatively narrow: law for the legislative draftsmen will
strictly be a matter of written rules, of normative propositions. The legisla-
tor will use rules to try to give expression to political, economic and social
policies. Atias makes the further point that the legislator will be the one

34 See generally Ivainer (1988).

35 CC art 4.
36 Atias (1994: 22–23).
37 See eg Hall v Lorimer [1992] 1 WLR 939, 944.
38 Atias (1994: 25–28).
39 Ibid: 23–25.
38 Asking the Right Question

most ready to make use of legal fictions and presumptions.40 They may, for
example, deem fault to be present in certain described factual situations or
they might deem a person to be a ‘terrorist’ or a ‘person dealing in drugs’ if
found in possession of particular items. Indeed such fictions and presump-
tions in legislation in different legal systems ought to be one focal point of
comparison.
The teacher of law, like the teacher of science, needs a model that takes
a global and rationalist view of law since complexity is often seen as inhib-
iting the communication of legal knowledge. From Roman times, jurists
have been involved in the systematisation of knowledge and its reduction to
propositions that can easily be assimilated. This is a tradition that resulted
in the codes of Continental Europe: legal scholarship on the Continent was
a matter of ever more elegant and symmetrical ‘nutshells’.41 The common
law escaped codification of course, but the rise of the law faculties has
resulted for example in a textbook tradition, a concern with rationality and
logic, an emphasis on philosophical idealism, the adoption of critical exter-
nal viewpoints and the contextualisation of law and theorising through the
use of hypothetical facts.42 This said, it must be remembered that it is not
always the academic lawyer who makes new ‘discoveries’.43 At a technical
level, it may be practitioners who develop new ideas and concepts in order
to further the interest of their clients.
Orientation is thus a more complex issue than it might at first appear. As
we shall see, even the internal and external dichotomy is problematic for
the comparatist; yet in addition to these complexities it cannot be assumed
that the ‘internal’ view is a uniform one. Of course the extent to which these
complexities can be reflected in the research question itself is a major diffi-
culty. But the main point to be stressed is that orientation is something that
can be tackled at the literature review stage. Locating the position of the
various writers in respect to their writings on law will form an important
part of ‘problematising’ the literature, the reviewer beginning to reflect for
instance on the intended target audience of the various pieces of literature.44
As we shall see such early reflection can have a major impact on how the
researcher in comparative legal studies envisages and tackles the notion of
culture or cultures.

40 Ibid: 24–25.
41 Watson (1994).
42 See eg the various contributions in Robertson and Wu (2009).
43 Wilson (1987).
44 Compare for example Birks (1997a), Descheemaeker (2009), Hackney (1997) and

Samuel (2004b).
 Validation of Assertions 39

Lawyers as a class

Practitioners
Practitioners in general

Legislators
(social data,
Professional lawyers
ideological Judges (interest of both
Academics ideas, rule Advocates etc (interest
(theories, parties, interest of justice,
drafting) of their clients)
reductionism) policy considerations)

Figure 2.4: Epistemological Orientations

VIII. VALIDATION OF ASSERTIONS

In addition to reflecting on the various orientations to be found in the litera-

ture, the researcher should, at this preliminary stage, think about the valida-
tion of assertions. And this reflection should focus not just on the assertions
to be found in the literature but equally on the researcher’s own writing.
Gérard Lenclud explains the problem in terms of the ways in which epis-
temological validity can be conferred on a knowledge area.45 Normally, for
the realist, validity is accorded through correspondence with the facts and
so, for example, science proceeds by building models that not only explain
a phenomenon but predict its behaviour in causal terms. The more accurate
the predictions the more valid the knowledge model.46 The anti-realist,
however, relies on the coherence of an assertion within an already founded
knowledge system—a system of axioms—to confer the necessary epistemo-
logical validity. One does not, for example, justify a mathematical assertion
by its correspondence with an external fact but by its non-contradiction
with other assertions within the system of numbers. Lenclud goes on to
point out that a third way that validity can be conferred on a knowledge

45 Lenclud (2006).
46 Karl Popper has of course proposed a somewhat different formulation in terms of the
possibility of falsifying a scientific hypothesis. Thus the theory that all swans are white cannot
be proved as such but only falsified: Popper (1959: 3–7).
40 Asking the Right Question

domain or an assertion is by consensus.47 Truth is a matter of an accord

between two or more people and so, for example, the assertion that the
sun circled the earth was once ‘true’ simply because people were agreed on
its truth. One point that Lenclud wishes to make is that a discipline gains
much of its epistemological strength through the consensus of those that
work within it and once this consensus starts to dissipate then the discipline
itself is threatened.48

Formalist:
coherence of
assertion (eg
mathematics)
Consensus: belief
Realist: assertion in the validity of
corresponds with the assertion (eg
external object religious
assertion)

Validity
of an
assertion

Figure 2.5: Validity of Assertions

Given the strength of law as a discipline—it is, seemingly, not yet a

subject in danger of dissipation49—a question arises about the validation
of assertions within this discipline. However, before tackling this question
directly it may be worth reflecting upon the kind of assertions that are usu-
ally made in law, and what becomes evident at once is that such assertions
are normally associated with a text. In the civil law tradition much writing
by academic lawyers takes the form of commentaries on codes or other
pieces of legislation and these commentaries explain the various words,
notions and concepts employed and how they might play out in hypotheti-
cal factual situations.50
The work of the jurist is in part, then, devoted to the analysis of pub-
lished texts and both the methods of these jurists and the validation of their
assertions are intimately connected to the text as object.51 This is not to

47 Lenclud (2006: 91).

48 Ibid: 92.
49 Law is of course not just an academic discipline but a professional one and it is this pro-

fessional aspect which is one of the main characteristics of its history: see generally Brundage
(2008).
50 For an overview in France see Jestaz and Jamin (2004). See also Van Hoecke (2011a).
51 Van Hoecke (2011a).
 Reductionism and Harmonisation 41

say that correspondence with social reality is completely absent from the
juristic pursuit. The social or economic effectiveness of a piece of legislation
is very much within the research sphere of a law faculty. However, relatively
few lawyers are qualified social science researchers—and in a civil law
system like that of France such research would not count as la doctrine52—
and so only a modest part of the research that emanates from law faculties
concerns the actual empirical impact of particular laws. Much of writing
by lawyers is to be found in textbooks, commentaries and articles and often
what these works seek is a greater coherence in the way law functions as
a system.53 As Jolowicz once observed with respect to common law cases,
modern textbooks ‘are important … as guides to the case-law with which
they are concerned.’ Moreover ‘if they are good they are more than mere
guides, for they seek not only to arrange the cases systematically but to
extract from them the general principles of the law and to show how those
principles may be developed.’ And, he added, ‘the same is true, on a smaller
scale, of articles in the Law Reviews.’54
This emphasis on coherence can be problematic for the comparative law-
yer, in that it is extremely restricting as a methodology. Of course one can
compare for example two different codes in terms of their coherence and
the information that such comparison might elicit could be valuable. But
such a limited comparison implies that laws and legal systems should be
measured only in terms of their structure and this would be unhelpful even
for the practitioner. This is why the emphasis on structural coherence gave
way to the functional method during the twentieth century.55 In fact, as we
shall see, even functionalism is now under attack as being too restrictive;
over the past two decades the emphasis has shifted, at least to an extent,
to hermeneutics. The legal text is simply a signifier and the job of the
comparatist is to go beyond this signifier in order to discover the cultural
and mentality significance that the text represents. The comparatist is an
interpreter, not a mathematician or logician.

IX. REDUCTIONISM AND HARMONISATION

Another difficulty that arises from an epistemological emphasis on coher-

ence is the temptation, implied in Jolowicz’s assertion, that the comparatist
should indulge in an exercise of reductionism. This latter term has been
described by one French philosopher specialising in theories of knowledge
as an epistemological strategy consisting of the application of concepts and

52 Jestaz and Jamin (2004: 171).

53 Van Hoecke (2011a).
54 Jolowicz (1963: 314).
55 See eg Gray and Gray (2003).
42 Asking the Right Question

methods designed to reunify an area of knowledge that previously had had

to be broken up and diversified in order to understand its objects.56 In the
civil law tradition such reductionism has been one of the main motivating
forces behind doctrinal works since Roman times, and when combined with
the search for coherence has given rise to the fashioning of models that are
‘axiomatic’ in structure; that is to say, models capable of acting as a coher-
ent structural system from which the solution to any litigation problem can
be logically inferred.57 Civil lawyers may have moved on from such rigid
mathematical thinking, but logic and systematisation remain, alongside
interpretation, important aspects of the doctrinal method.58
What is dangerous about this epistemological and methodological
strategy if imported into comparative legal studies is that it can so eas-
ily dictate that the job of the comparative lawyer is to seek out universal
principles which lie behind—indeed unite—two different legal systems or
two domains within them. The obvious problem with such universalisa-
tion is that it can transform the comparatist into not just a legal theorist,
but a kind of neo-natural lawyer. The process becomes one of uniformali-
sation, not of comparison. Such a process, it must be said at once, need
not be a matter of simple inductivism; it need not consist of ‘comparat-
ists’ searching for some common normative principle latent within two
or more systems. It can be combined with a critical approach whereby
various differing solutions to a problem can be compared with the object
of discovering the ‘best solution’ amongst them.59 Such an approach is
one that is advocated by some of those involved with the harmonisation
of laws within Europe, or even on a global scale.60 Of course the criteria
that will act as the basis of a ‘best solution’ approach can vary and need
by no means be unsophisticated, especially if underpinned by seriously
researched empirical evidence. Yet the researcher who adopts such an
approach will need to ask herself if she is truly undertaking an exercise in
comparison or is, instead, involved in the rather different exercise of sup-
pressing the ‘local’ knowledge through the construction of a transnational
and supposedly harmonising text.61 For example it is tempting to think
that contract and contrat are both founded on the notion of conventio
(agreement), but it is arguable that this is not the case and that attempts to
understand the common law general theory of contract through an appeal
to ‘agreement’ will result in misunderstanding.62

56 Besnier (1996: 102).

57 Van Hoecke (2011a: 9). See generally Jouanjan (2005).
58 Ibid.
59 For an example of a ‘better law’ approach, see Herbots (2012).
60 See eg Lenaerts (2003: 122–23).
61 Cf Glenn (2003). For an example of ‘better law’ assertions unsupported by any empirical

evidence see Herbots (2012).

62 Samuel (2010: 93–99).
 Review and Reflection 43

Mass of case decisions and

different factual situations

Induction of a common
denominator

Fashioning of a legal principle

that explains/governs the cases

Figure 2.6: Reductionist Thinking in Law

Case involving Case involving

Case involving lemons: does one potato: any analogy
apples draw an analogy with any fruit in the
with oranges? previous cases?

Case involving Case involving Case involving

oranges: are peaches: like apples, tomato: analogy
oranges like apples? oranges, melons or with any fruit or
(Decision: y/n) strawberries? with potato?

Case involving Case involving Case involving pork

melons: are melons strawberries: like chop: analogy with
like oranges or apples, oranges or one of the fruits,
apples? melons? potato or tomato?

Figure 2.7: Casuistic Thinking in Law

X. REVIEW AND REFLECTION

Formulating a suitable research question and undertaking a review of the

literature is, then, a stage that is of fundamental importance to anyone
who wishes to pursue research in comparative legal studies. It is the stage
at which the direction, sophistication and scope of the research project are
to be determined; and it is the stage at which the researcher must begin to
reflect on the methodological and epistemological implications of undertak-
ing a comparative law project. Merely describing some area of, say, criminal
law in the German and English systems, however detailed the work on
positive law, is not a serious comparative law exercise. The researcher must,
evidently, have a profound knowledge of this positive law literature in this
(for example) area of criminal law but such knowledge is by no means
enough. She must also have a profound knowledge of the literature on gen-
eral theory of comparative law so as to be able to inform the readers of her
final thesis what methodology, what orientation and what epistemological
44 Asking the Right Question

foundation she has adopted. Failure to appreciate these general theory

issues will often result in just another descriptive and intellectually uninfor-
mative (at least from a scholarly point of view) piece of work.
This is not to say that the researcher in this example area of German and
English criminal law (or any other area) has to adopt an ‘external’ or inter-
disciplinary orientation. She is perfectly entitled for example to produce a
thesis grounded entirely in the epistemology of coherence.63 But if she is to
adopt such an approach, then her intellectual objective must not only be
set out clearly at the introductory stage, but equally given expression in the
research question pursued. Moreover the researcher ought to justify why a
particular methodology and orientation has been adopted, for, as we will
see, different methods result in different kinds of knowledge.64 And this
of course is true with respect to any other orientation and epistemological
grounding that might be adopted. As for the research question itself, this
should be stated very clearly and precisely in the introduction since it is the
vehicle in which the reader will be transported from this introduction to
the final conclusion.

63 For a very thorough thesis that adopts a conceptual/structural approach see eg Giglio

(2007).
64 One problem with many law theses is that they do not actually articulate their method-

ological approaches and epistemological assumptions; they assume that legal scholarship is
positivistic in turn involving the kind of methods identified by Professor Van Hoecke: see Van
Hoecke (2011a).