Vol. 25 No. 1 (January 2015) pp. 8-10
AN INTRODUCTION TO COMPARATIVE LAW THEORY AND METHOD by Geoffrey Samuel. Oxford: Hart Publishing, 2014. 210 pp. Paper $34.00, ISBN: 978-1849466431.
Reviewed by Allyson C. Yankle, Department of Political Science, University of Connecticut. Email: firstname.lastname@example.org.
The purpose of this book, INTRODUCTION TO COMPARATIVE LAW THEORY AND METHOD, is to provide a roadmap for students and scholars for the methodology of comparative law. The content is evidently drawn from the experience of the author, Geoffrey Samuel, teaching the issues of methodology and theory of comparative law. The book does not reach a singular conclusion about a method regarding how comparative law research should be conducted, but rather suggests a series of dichotomies that researchers should consider when developing a framework for comparative law.
The first issue for Samuel is defining comparative law, recognizing that any definition of the subject should highlight the dual nature of the subject as having an epistemological and practical function (p. 8). Because of this dual function, questions of comparative law can span across issues of content, methodology, epistemology, and theory (p. 9). These questions can be answered through a framework that Samuel details in the book, but he specifically focuses on the issues of methodology and epistemology. The book’s framework is organized around the understanding of what “comparison” means and what “law” means.
Samuel starts with the question of “What is comparison?” By understanding what is being compared, a researcher can best choose a model, based around a methodology, while also keeping in mind the epistemology and ontology behind the decision of what to compare. He identifies four distinct types of comparison: macro and micro comparisons, differential comparison, genealogical and analogical comparisons, and internal and external perspectives. Within each type of comparison, there is a broad discussion that draws upon secondary literature to demonstrate what the comparison, as well as types of questions, can best address. While each type of comparison is discussed separately, Samuel acknowledges that they may not necessarily arise in a hierarchical nature nor will every project address all four different types of comparison. By establishing and understanding what type of comparison a project explores, a researcher may choose a proper or compelling method that is best suited for the project.
Next, Samuel discusses three different types of methodology used in comparative law scholarship: the functional method, the structural method, and the hermeneutical method. He acknowledges that the functional method has been the most commonly used methodology in the field of comparative law. Part of the reason why it has been so popular within the field is that the method emphasizes cases and facts, allows for conceptualization and categorization of these facts, and can explore solutions to specific problems, which in turn allows for greater explanation of the comparative world. This has made the functional method appealing for comparative law scholars. Despite its popularity, there are several key critiques of the method, including the lack of a cohesive meaning and specific method as well as assumptions about a specific epistemology and ontological beliefs. To highlight these critiques, Samuel returns to the necessity of understanding the underlying epistemology of the functional approach. He discusses “schemes of intelligibility” to illustrate the weaknesses of what can actually be observed of the social reality (p. 81). Functionalism is only one scheme of intelligibility, so only part of the social reality may be accessed. By turning to other schemes, or methods, comparativists can expose both the weaknesses and strengths of the functional method in explaining the social reality. He considers two methods that address criticisms of the functional method: the structural method and the hermeneutical method.
First, the structural method can help to better understand the structure and classifications of a legal system (p. 96). Using examples from the [*8] literature, he identifies three key structures that have been previously used; these include legal institutional structures, norm structures, and rights structures. Broadly, Samuel discusses how the structural method may be used in comparative law, especially how it highlights interrelated elements in a system, as well as allows for both an internal and external perspective on legal systems (pp. 106-107). He also considers the hermeneutical method as articulated by Pierre Legrand. Second, the hermeneutical method argues that comparativists should go beyond the text of the law and search for what the law means rather than what causes the law (p. 110). For the hermeneutical method, a comparativist shifts from understanding the law as constructed from texts, rules, and cases, but to the realization that the law can be understood only by accounting for the legal tradition within the larger cultural structure (p. 119). The discussion of both the structural method and hermeneutical method includes examples from the literature as well as an acknowledgment of the strengths and the limits of both these alternative methodologies.
Samuel then turns to his second question of “What is law?” He argues that there are two conceptualizations of what law may be. On the one hand, law can be thought of as rules and norms, concepts, or systems. Conceptualizing law as rules has been a popular model, but one that is often complicated by considering social values and facts. Other models of law are concepts, such as rights and duties, and as a system, such as a body of knowledge. Under each of these three models, law acts as an object of comparison. On the other hand, law can be approached and compared more critically by considering it as a system. For some, this means considering the influences of positivism, natural law, and realism and how they result in differences in the interpretation of law because these three factors can influence how law is interpreted. Other ways that law can be the object of critical comparison include looking at the language or how it relates persons, things, and actions in both a tangible sense as well as how it is expressed in legal code (p. 147). Samuel highlights that the answer to “what is law?” is not a simple one and that it often is difficult to separate from the content and method of comparison.
Samuel has accomplished his goal of emphasizing concerns about methodology as well as epistemology and ontology within the field of comparative law. This is particularly evident in his chapters on methodology, which illustrate the benefits of questioning the underlying assumptions of the dominant method in the field, as well as considering alternative methods to address these concerns. Moreover, he accomplishes his goals by drawing on secondary literature, using multiple examples for the reader to reference, and reinforces the discussion through the use of visual aids. These are particularly useful when the discussions become technical and rely on vocabulary and concepts that may be unfamiliar to the reader. Finally, even with the discussion of alternatives to the dominant methodology, which also incorporates a position on epistemology and ontology, Samuel advocates for a pluralistic position. The book allows researchers to assess their own project through the various lenses of what types of comparisons they are engaging in, what methodology is best suited for this pursuit, what their epistemological positioning is, and how they develop their theory. It provides a roadmap, but makes no judgment on what choices the researcher makes.
Samuel has undertaken an arduous task of putting forth a text about the methodology and theory of comparative law. As he noted several times, the line often blurs between “What is comparison?” and “What is law?” He articulates in a concluding chapter that there is not a coherent methodological framework that emerges, which leads the reader on a meandering journey. The concluding remarks about the series of dichotomies that formulate his framework, however, make the framework clearer. Perhaps they would be more of use to the reader if they were placed towards the beginning. These summaries often provided a clearer picture of questions that a researcher would want to keep in mind compared to the discussion of the dichotomies within the chapters. [*9]
I certainly welcome the call for approaching questions of comparative law through intensive inquiry and critical engagement. Samuel wants to provide comparative law practitioners with the skills to do just this: to investigate the norms that govern what texts and methods they use as well as how they perceive and construct social facts. However, he assumes a degree of familiarity that not all readers may have concerning the legal theory. This may put these readers at a distinct disadvantage when attempting to comprehend the discussions, as well as apply Samuel’s framework to their own research project.
This is an ambitious project by Geoffrey Samuel and one that hopefully exposes more scholars and students to the variety of methodological and theoretical approaches of comparative law and comparative legal theory. This book has a specific audience that may be quite receptive to the research design, methodological and theoretical points that are articulated. The potential methodological framework through the ten dichotomies in the concluding remarks provides an excellent road map for issues that researchers should keep in mind when embarking on a comparative legal theory project. With the expanding interest in the field, researchers who are willing to expand beyond the traditional method and questions may be rewarded with questions that were not previously as evident. For this reason, Samuel demonstrates the need for plurality as well as weighing these research choices in each of the chapters by providing a holistic view of each of the dichotomies discussed. For those who are in the target audience and are interested in questions about comparative law and legal theory, this text should be a welcome resource.
© Copyright 2014 by the author, Geoffrey Samuel.