Oleh: Ratno Lukito, DCL.
Seminar Riset Perbandingan Hukum, Jurusan Perbandingan Madhab dan Hukum, Fakultas Syariah UIN SUKA YK, pada 29 Nopember 2008.
THEORY OF COMPARATIVE LAW
Comparative law is the field of study devoted both to describing the content and style of local, national and religious legal systems and to exploring the similarities and differences among them.
Functions: law revision, unification of law, harmonization of law, etc.
Taxonomy
Epistemological perspectives:
–It is a distinct body of legal knowledge
–It does not represent a particular substantive field of the law
Kinds:
–Descriptive: Comparative research that reports the substantive content or particular style of a foreign legal system
–Theoretical: Comparison focuses on the similarities and differences among legal systems.
–Applied: concerned with finding the best norm for a given social or economic situation
Scope or research:
–Macrocomparison: focuses on general questions. Deal more on the level of legal system, such as the differing style of codification and statutory interpretation, the decisional style of the courts, etc.
–Microcomparison: concerned with how specific legal problems are resolved in the various jurisprudence. Deal more on specific legal traditions.
RESEARCH
Functionalism
–Concerned on how to compare the law’s practical consequences across legal systems
–To create a uniform law
nUnifying certain areas of private law: International Institute for the Unification of International Law (UNIDROIT)
nUnification in the area of international commerce
–Related to Roscoe Pound’s sociological jurisprudence, Rudolph von Jhering’s Interessenjurisprudenz and Freirechtsschule: law as channeling or modifying human behavior
–To satisfy particular need
Approaches:
–Tertium comparationis
n“In law the only things which are comparable are those which fulfill the same function.” “If law is seen functionally as a regulator of social facts, the legal problems of all countries are similar.”
nProblems:
–There are institutions for which equivalents are not found in all systems
–The influence of a society’s vision extends beyond complexities
–Praesumptio similitudinis
- “Different legal systems give the same or very similar solutions, even as to the detail, to the same problems of life, despite the great differences in their historical development, conceptual structure, and style of operation.”
- Suggesting that comparative research is not complete until it has been demonstrated that the legal systems under consideration reach similar results in similar circumstances.
- Finding the common denominator of various legal traditions.
- Weaknesses: reductionism, removing the relationship of law and norms outside legal context.
New theory
–A praesumptio (conjectura) dissimilitudinis
–2 methods:
Researcher is participant of a particular legal system
Re-examination of the nature of the object of study (law as an aspect of culture that produces it)
–Sacco: unitary rule of law is in fact a set of competing and conflicting norms that emerge differently from a close analysis of statutes, case law, and doctrinal discussion
nThe concept of legal formants
–Merryman: the concept of legal extension, legal system’s penetration, legal culture, legal structures, legal actors, legal processes.
–Masaji Chiba: 3 layers of law in the situation of legal pluralism: state law, non-state law and legal postulate
Methods
–From hypothesis to the field of research
–Directly to the field of research
Areas of research
–Between inter and intra practical legal differences:
Legal traditions
Legal culture (deeply rooted attitudes about the nature and role of legal system)
Legal system in a particular country
–Between different legal postulates (formants)
