Методология сравнительно-правовых исследований

Известия высших учебных заведений. Правоведение. 2013. № 3. С. 118–144.

Ван Хук М.

Translator: Osvetimskaya I.

Researchers get easily lost when embarking on comparative legal research. The main reason being that there is no agreement on the kind of methodology to be followed, or even methodologies that could be followed. Moreover, almost everything that was more or less established in the area of comparative law over the last century has been increasingly criticised during the last few decades: the concept of ‘legal family’, the possibility of comparison itself, the object of comparison, etc.

On the other hand, comparing domestic law with the way the same area has been regulated in  one or more countries has become almost compulsory in doctrinal legal research.

How should a comparative researcher cope with this apparent paradox ?

In this paper an attempt is made to work out a methodology for comparative legal research, which goes beyond the ‘functional method’ or methodological scepticism.

The starting point is the idea that we need a ‘toolbox’, not a fixed methodological road map, and that a lot of published, but largely unnoticed, research offers varying approaches, which could usefully be applied in comparative research. Basically, it is the research question which will determine which methods could be useful.  Moreover, different methods may be combined, as they are complementary and not mutually exclusive.

Keywords: методология, функционализм, структурализм, methodology, исторический метод, analytical method, аналитический метод, сравнительно-правовое исследование, functionalism, historical method, comparative legal research, structuralism, law-in-context, levels of comparison, контекстно-правовой подход, уровни сравнения