Main methods of comparative law research

I. Macro comparison and micro comparison

René Davy, a French comparative jurist, combined with comparative studies involving almost most legal systems in the world, discussed the methods of macro-comparison and micro-comparison. He believes that macro comparison is a comparative study of the laws and legal systems of countries belonging to different legal systems, mainly referring to the comparison of continental legal system, Anglo-American legal system and socialist legal system. For the application of macro-comparison, legal philosophers and political scientists mainly pay attention to and apply it to the study of comparative constitutional law and political science. David believes that micro-comparison refers to the comparative study of laws and legal systems belonging to the same legal system. German comparative jurist Reinstein believes that macro comparison is about the comparison of the whole legal system, while micro comparison is about the comparison of specific legal rules and systems. Of course, the two are intertwined. Micael Bodan, a Swedish comparative law scholar, believes that comparison can be bilateral (that is, between two legal systems) or multilateral (that is, between more than three legal systems). Macro-comparison is the comparison between the whole legal system or different legal systems; Micro-comparison is to examine the role of specific legal systems and regulations in their legal and "non-legal background and environment". From the perspective of dividing laws, I Saab, a Hungarian comparative jurist, believes that macro comparison is a comparison of laws as a whole, that is, a general comparison of laws related to legal theory; Micro-comparison is a comparison at the level of legal departments and legal systems. This comparison can not only draw theoretical conclusions, but also directly reflect social functions.

Some comparative jurists in China believe that macro comparison refers to the comparison of laws and legal systems of countries with different legal systems or different social systems. There are at least three situations here: first, the comparison between the laws of countries with the same social system but belonging to different legal systems or legal traditions, and the comparison between the laws belonging to countries with common law system (Britain, the United States and other countries) and those belonging to countries with civil law system (France, Germany, Italy and other countries) is the most common one. Second, the comparison of laws and legal systems in countries with different social systems. Third, in the same country, because there are different social systems, different legal systems or different legal traditions in the same country, the comparison between laws and legal systems belonging to different social systems or different legal systems in the same country is also a macro comparison.

Micro-comparison refers to a detailed comparison of different legal concepts, rules, systems and departmental laws. For example, compare the contracts of common law system and civil law system, or compare the "possession" of France and Germany, or compare the consideration theory of common law system and the concept of "consideration" of civil law system. , all belong to microscopic comparison.

Second, specification comparison and function comparison

This mainly refers to the comparison of legal norm systems or specific legal norms in different countries. Normative comparison must meet the following conditions: first, the legal structure of different countries is the same, that is, the division of legal departments and their legal concepts and rules are the same or similar, which is comparable. Second, the compared legal systems and rules have the same social functions in different countries. If the laws of the countries being compared have the same social function but different legal structures, or the legal structures are the same but different social functions, they are not comparable and cannot be compared in a normative way. Compared with other countries' laws and systems, normative comparison only pays attention to the laws in the text and ignores the social conditions and practical functions of laws in society, and often only starts from the country's legal concept, legal structure, legal system and legal model, which will lead to narrow ethnocentrism.

Functional comparison method breaks through the limitations of normative comparison method. Functional comparison solves social problems. The countries being compared have the same or similar social problems or needs, so we can compare the different solutions they use. Functional comparison method breaks through the limitation of normative comparison method with its own legal concept and legal structure, and gets rid of the national prejudice caused by comparing it with other countries' laws only from its own legal concept, legal structure and legal thinking mode. When different legal norms have the same or similar functions, the corresponding parts can be compared.

Contemporary German comparative jurists Zweigert and Katz profoundly pointed out that all methodological principles of comparative law are functional principles, which led to methodological rules such as the choice of comparative law, the scope of discussion and the composition of comparative legal system. In their view, any problem as the starting point of comparative law research must start from a purely functional point of view. Cocchini Atridaw, a Dutch comparative jurist, denied the view of pure functionalism. He quoted Rozmarin, a French jurist, as saying that normative comparison should be combined with functional comparison, and that pure structural (normative) doctrine would lead to formalism and dogmatism. Pure functionalism forgets that the legal system involves adjusting daily life, and only by combining the two can we overcome their respective limitations.

The relationship between normative comparison and functional comparison is coordinated and complementary, and one aspect cannot be overemphasized. The comparison between different countries' laws and their legal systems can be based on the differences in legal concepts and legal structures. , or the differences between social problems and social needs to be solved by law, adopt normative comparison centered on legal norms or functional comparison centered on social problems respectively.

Third, cultural comparison.

Some comparative jurists in China believe that cultural comparison method refers to treating law as a cultural phenomenon in the understanding of law. From a cultural point of view, law is not only a tool to solve social problems or meet social needs, but also a symbol to express or convey meaning-people's views, attitudes, emotions, beliefs and ideals about the world, society, order and justice. Some foreign cultural comparative methodological scholars believe that comparative law is the comparison of legal culture. Bert Grosfield, a German comparative jurist, believes that law is culture, or culture is law. He believes that comparative law is the comparison of various legal cultures. The Belgian jurists Hawke and Wallington put forward a new comparative paradigm of "law as culture" to replace the traditional comparative paradigm of "law as rules". Karen, an American comparative jurist, believes that in order to effectively investigate a legal system, we must put ourselves in the historical and cultural background of shaping this legal system and understand and explain its cultural spirit. She put forward the method of "cultural intervention" to know and understand legal culture. Friedman believes that legal culture itself is understood as the causal factor of legal development, and culture determines the development culture of law and legal thinking.

Culture is an important factor in the study of law and comparative law, and different cultures have certain influences on the emergence and changes of different laws and legal systems. However, in the process of the emergence and development of law, culture is not the only final determinant. Therefore, when we study comparative method and apply cultural comparative method, on the one hand, we must use Marxist legal view to correctly understand the relationship between superstructure components such as law and culture, as well as their relationship with social and economic foundation; On the other hand, we should attach importance to the exposition of legal culture by western scholars and introduce and learn from various comparative research methods.

Fourthly, static comparison and dynamic comparison.

Based on the views of some comparative jurists at home and abroad, it is believed that the conceptual understanding of static comparative research refers to the study of legal provisions and the static observation of legal system, that is, the study is carried out on a cross section and at a specific time point. Dynamic comparative study refers to the study of the emergence, essence, development, function and form of law, as well as the formulation and implementation of law. Of course, some western jurists have different understandings of the above concepts.

At the end of the 20th century, Italian comparative jurist Sacco put forward the theory of "legal vibration", which claimed to be a dynamic comparative study. In his view, dynamic research is based on the actual observation of various components in the operation of a specific legal system, while static research is a dogmatic method based on analytical reasoning, which only provides abstract definitions. According to Sacco's theory, there is not only one rule on the same legal issue, but also the rules of the constitution, the legislature, the judge and the jurist who interprets jurisprudence. It includes the formulation of different legal rules, case law, jurist's theoretical explanation and other legal manifestations, as well as various components of non-behavior rules put forward by legislators, jurists and judges in order to explain and demonstrate the rules abstractly. , are within the scope of "legal * * *". He believes that this kind of dynamic research analyzes the changes of various components that affect the law, which is contrary to static comparative research.

Sacco's theory of "legal vibration" has its limitations. For example, it is emphasized that the judge's judgment is the explanatory role of case law and jurists, and it is regarded as the source of law, while China does not implement the case law system; It emphasizes the role of individual judges in the creation and development of law and the judicial independence of judges. In China, the Constitution and corresponding laws stipulate that judges independently exercise judicial power according to law, which is essentially different from judicial independence in western countries. Therefore, Sacco's theory of "legal vibration" is not suitable for comparative jurists in China to conduct dynamic comparative research. Static comparison and dynamic comparison should be organically combined, so that they can cooperate with each other rather than oppose each other and conduct comparative research.