Базовые посылки современных сравнительных исследований истории права

Сравнительное конституционное обозрение. 2018. № 2. С. 68–85.

Poldnikov D.

Recent rapid changes in the world put all legal traditions to the test. In Europe it boosts interest to comparative legal history or investigations into the factors of legal development through comparative analysis of two or more jurisdictions of the Old World. This new approach generates vivid debates and yields some valuable publications. Yet its methodology is far from clear. Does comparative legal history have the methods of its own? Or does it borrow them from comparative law?

To resolve this complicated issue one must look at the basic assumptions of comparative study in contemporary law and its history because they assure compatibility of specific methods. In this article the author investigates such common basic assumptions as: the complex and less coherent picture of law in the past and present (as compared to the scientific perception in the late 19th and early 20th century), multilinear evolution of law, interconnectedness and legal traditions, persistence of ubiquitous legal transplants due to cross-cultural influences, flexible regularities of legal development.

These basic assumptions allow for several methodological conclusions in comparative research. The complex vision of law and its multi-factor development necessitate combination of various methods of research. Cross-cultural influences and the socio-cultural environment of law add value to a comparative approach in understanding apparent and hidden factors of legal development. A predominantly realistic interest of many legal historians in comprehending how law actually shaped social relations brings to the frontline of their methodology the functional method of comparative law which aims at discovering the link between the social problems and their legal solutions. Finally, the compatibility of basic assumptions paves the way for several common academic goals and the object of comparative research in legal history and contemporary law. All the above justifies attempts to build on the methods of comparative law in the domain of comparative legal history.

Keywords: comparative legal history, сравнительная история права, functional method, функциональный метод, basic assumptions, базовые посылки

Publication based on the results of: Функциональный метод в изучении общих положений договорного права Франции, Германии и России в период «долгого XIX века» (2017)