Does One Need an Understanding of Methodology in Law Before One Can Understand Methodology in Comparative Law?

09 Nov, 2015 GENERAL LAW 0

ORDER TO develop a suitable methodology of comparative law’, writes Professor Mark Van Hoecke, ‘one needs a better view on the methodology of legal scholarship within domestic legal systems’.¹ This may seem, at first sight, a perfectly reasonable premise, yet on reflection it raises a number of fundamental questions about law as a discipline, about legal scholarship, about methodology in law and about the relationship between legal scholarship and comparative legal studies. It is the purpose of this contribution to reflect upon these questions in the context of the relationship between methodology in what might be termed ordinary legal scholarship within domestic legal systems and methodology in comparative legal scholarship. However, instead of starting out from the premise that one needs a better view of method in ordinary legal research, this contribution will suggest a different premise. Does one need an understanding of methodology in comparative law scholarship before one can properly understand the methods employed within domestic legal systems?

This is not the only question that will be examined in this chapter. A further question is this. Has law as a discipline anything to contribute to social science methodology and epistemology in general, or is it a discipline that is entirely dependent upon methodological and epistemological insights developed by those outside of law? In attempting to answer this question, the present contribution will focus on the work of the late Jean-Michel Berthelot who, before his untimely death, had been producing pioneering insights into methodology and epistemology in sociology. This work, especially Berthelot’s ideas on schemes of intelligibility, has been discussed and analysed in considerable detail elsewhere,² but it will be revisited once again for several reasons.

First, it is arguable that Berthelot’s work is the only sustained attempt to provide a generalised overview of methodology in the social sciences that rises above a strictly historical and descriptive analysis, aiming therefore to fashion a theorised epistemological understanding of what has been going on in this vast area over the last two (or more) centuries. Secondly, Berthelot’s schemes of intelligibility undoubtedly provide enormous insights not just into reasoning in the social sciences but equally into legal reasoning.³ Thirdly, it is arguable that legal reasoning may, in turn, have a specific contribution to make to Berthelot’s schemes. Such an argument, or at least the specific argument set out in this contribution, will, it must be said at the outset, be controversial and might not, in the end, be fully sustainable. Yet it is worth investigation since, if nothing else, the argument should provide insights into legal methodology and epistemology.

I. THE PROBLEM OF INTERDISCIPLINARITY

Comparative legal studies, if it has done nothing else, has provoked a number of fundamental questions about methodology.⁴ One such question concerns the dominance of what has been called the functional method in comparative law and this issue is now producing a body of ever more sophisticated literature.⁵ Yet this literature on methodology in comparative law is equally provoking questions of a different kind. Do comparatists need to be fluent in interdisciplinary approaches before they can properly call themselves a comparative lawyer? The response of some comparatists has been positive,⁶ but others have been rather negative. Thus, one French law professor, Bénédicte Fauvarque-Cosson, after asserting that, for better or worse, the Europeanisation of law is already taking place and that European legal systems are already converging attacks one of the dissenters to this thesis in the following way. When ‘Legrand advocates complex cultural and interdisciplinary comparison’, she says, ‘his approach renders the discipline so complicated that it may well discourage and deter scholars from becoming involved in the first place’. She goes on to say that:

It should also be noted that this highly exclusive approach to comparative law is in complete opposition to the present needs of French society. . . . Especially in the light of the lingering bias that it is impossible to be both a comparatist and a good French lawyer, it seems not only unrealistic but also counterproductive to insist that French comparatists become interdisciplinary specialists or social scientists.⁷

This observation by Fauvarque-Cosson is not an isolated one, for others have also attacked recent comparative law scholarship.⁸ Now the attack itself might, at first sight, seem at best rather trite. Yet it is important (even if unintentionally) for two reasons. First, it indicates the kind of conclusions likely to be achieved by a comparatist working solely within the traditional doctrinal methodology that characterises legal scholarship both in the civilian and the common law world.⁹ This methodology has been described and discussed in some detail elsewhere and while there might be discernable differences between legal scholarship in the civil law and common law worlds,¹⁰ one common characteristic is that much legal scholarship – particularly la doctrine in France¹¹ – operates within what has been described elsewhere as the authority paradigm.¹² This paradigm is one where the primary scheme of intelligibility is hermeneutics operating in respect of a text (legislation, court judgment) whose authority is never put into question. Such an orientation allows the researcher to do little more than apply standard inductive and deductive techniques – for even the application of the functional method requires a certain familiarity with social science disciplines – with the result that comparative law becomes associated with one form or another of scientific reductionism.¹³ Comparatists operating within this paradigm become preoccupied with common denominators; and, as the object of legal research are only texts, the common denominators are often nothing more than assertions drawn from other (textual) assertions.

This in turn tends to result in claims of convergence and harmonisation.¹⁴ In other words comparative law orientates itself towards a presumption of similarity rather than difference. This problem has been recognised in other comparative disciplines and thus, for example, Ute Heidmann observes that the ‘recognition of differences between facts or objects to be compared is often neglected or omitted in favour of a too hasty focusing on what appears similar and, by extension, universal’. Heidmann goes on to assert that in the area of literary studies this research for universal themes still largely dominates the work on myths and this in turn leads to a ‘deductive approach which presents the danger of eclipsing whole sections of the objects of comparison that the presumed universal sense does not subsume’. In short, ‘the universalisation approach relates cultural facts to an abstract construction (the constitution of a prototype or of a list of myth-themes (mythèmes). . .).’¹⁵

The second reason why Professor Fauvarque-Cosson’s comment is of interest is that it does reflect a view of law, particularly prevalent in France amongst university law professors, that the primary role of the academic lawyer is to produce doctrinal work. This notion of la doctrine is examined by two French authors (both law professors) who point out that it has as its mission only to comment upon the positive law and in the manner that is restricted in its methodological approach.¹⁶ This approach views law uniquely from its interior¹⁷ within which the aim is to analyse and to explain in a coherent and logical manner a legal text or court decision and, continuing in this same methodological mode, to guide the reader towards future outcomes with respect to the positive law under consideration.¹⁸ One studies the law using analysis and synthesis in as strict a manner as the pharmaceutical chemist studies the body.¹⁹ A book on the sociology of law will thus not form part of la doctrine.²⁰ Nor, indeed, would a work on legal history or, if too interdisciplinary, a text on comparative law.

Now whatever one might think about the quality or defects of this approach, not only does it illustrate how law is very much a ‘discipline’ in all senses of the word, but equally it explains the reluctance of the late Jean-Michel Berthelot, who was one of France’s leading social science epistemologists, to include law in his collective work on social science epistemology.²¹ The academic lawyer is not engaged in a research exercise whose aim is to increase knowledge about society as a social reality; the lawyer is engaged in a hermeneutical exercise that has as its object a legal text and only a legal text. Of course, the interpretative exercise will bring into play certain conceptions and ideologies that the lawyer has about social reality and this will inform his or her textual commentary.²² Yet there are real epistemological dangers when this doctrinal method is extended into the area of comparative studies. As Heidmann points out, the ‘properly thought through and clearly explained construction of axes of comparison is an essential epistemological requirement of the comparative exercise’. For there is

epistemological truism that one tends to neglect when one remains inside a homogenous and unique disciplinary field of investigation, that is the fact that all the theories, all the notions and focal points of analysis and all the identities are object constructions.

In other words, the ‘epistemological truism is often forgotten in favour of a reification or an ontologicalisation of concepts’.²³

Fauvarque-Cosson’s assertion that legal systems are converging is a good example of this. Maybe they are or maybe they are not. However, when one examines the arguments for and against they tend to be based on the idea that legal concepts and categories such as ‘contract’, ‘property’, ‘fault’, ‘interest’ and so on have some kind of ‘reality’ and that it is these ‘realities’ which are converging. Yet where is the proof, save in the words of the legal texts themselves and within the narrow domain of the discipline of law? If the law professors are, as Fauvarque-Cosson seems to be saying, to be discouraged from entering into interdisciplinary work, then they will never be equipped to avoid the epistemological difficulty noted by Heidmann. Comparative law will become an exercise in which, say, ‘contrat’ is assumed to be ontologically similar to ‘contract’ with the result that there is effectively little serious comparison. Or, put another way, comparison in law will have little or no epistemological value beyond the authority-dominated discipline of law. No doubt some would argue that a functional approach might provide a more solid social ontology.²⁴ Yet the danger here is that functionalism, as practiced by authority-orientated lawyers working strictly in a non-interdisciplinary environment, will be methodologically meaningless. For, as Ralf Michaels points out, there are many different meanings of functionalism and if the method is to be used with any intellectual sophistication, these different meanings must be properly appreciated, requiring in turn of course an interdisciplinary sophistication.²⁵ In addition, one needs to be aware of the alternatives to functionalism, something those who advocate its use in comparative law seem reluctant to investigate.²⁶

If, then, comparatists are unwilling to take method seriously, it is difficult to see how comparative legal studies can progress much further than textual analysis and scientific reductionism. Certainly one could not expect those outside law to take comparative law scholarship seriously and this, in turn, raises a question about the intellectual status of methodology within ordinary legal scholarship. What comparative legal studies reveals is not, therefore, a need better to appreciate methodology within ordinary legal scholarship, for according to Berthelot this is either interdisciplinary and pluralistic or simply a hermeneutical programme ‘which is not of [lawyers’] own making’.²⁷ What is needed is a better understanding by lawyers of methodology in the sciences and social sciences and the starting point for such an appreciation might well be comparative law.

II. METHODOLOGY AND THE STATUS OF COMPARATIVE LAW

The question is, accordingly, whether lawyers like Professor Fauvarque-Cosson reflect the current status of comparative legal studies and the hope is that, in general, she does not.²⁸ However, to assure the status of comparative law a fundamental condition needs to be fulfilled: the comparative lawyer must free him or herself from the authority orientation. The epistemological orientation of the comparatist cannot be that either of textual authority or of legal science authority since the two forms of authority are incapable of providing answers to the two fundamental questions that comparative law, as an intellectual pursuit, poses. What is ‘comparison’? And what is ‘law’?²⁹

Take first of all the comparison question. What is it to compare and why undertake such an exercise? At one level the answer seems simple: thus Vigour states that to compare is, in the first instance, to bring out some differences and some common points according to a criterion that should be defined at the outset and which orientates the view of the researcher.³⁰ However, how does one begin to identify ‘difference’ and ‘common point’ and how does one equally identify a ‘criterion’? Before attempting to answer these questions, it is first important to distinguish, even if the distinction in the end proves elusive, between the function and the methods of comparison. Of course a complete separation would be meaningless since methodology will be determined and often tested in terms of its functions. Yet failing to distinguish between the two can result in work that is comparative in only a rather shallow sense. Thus, for example, the search for the ‘best solution’ in the context of European Union law is an exercise that is no doubt valuable,³¹ but it is not really any more comparative in its methodological sophistication than legal reasoning in general. Lawyers, or at least judges and professors, usually seek the ‘best solution’ when they work on a litigation problem, even if the general interests in play are not quite the same in a domestic dispute as compared to a European Union one. Of course one response is to say that every jurist is a comparatist without knowing it.³² Yet if this is the case then comparative law or comparative legal studies might just as well disappear from the curriculum.³³ Comparative method must go beyond any functionally-driven dialectical process in which the objective is to induce a higher level solution.

A number of methodological starting points need, then, to be identified. The first is the distinction between genealogical and analogical comparison. The former is a comparison between two phenomena (the objects of comparison) that, although now distinct, have a common ancestry. From this viewpoint, says Bubloz, it is a matter of explaining similarities between systems in terms of real historical connections and thus any resemblance is interpreted as the sign of a genealogical connection.³⁴ Analogical comparison, by contrast, is where the two phenomena do not have any genealogical or common ancestry connection and thus it is a matter of comparing, at least in the biological sciences, only structure and form. ‘In analogical comparison’, notes Bubloz,

to compare A and B is not then about presenting similarities as intrinsic properties resulting from a common source or differences as the sign of an irreducible singularity; to compare A and B is to establish some ideal relations between one phenomenon and another in the hope of improving the respective intelligibility of each of them.³⁵

One is comparing relations and aspects and not the things themselves.³⁶

This methodological distinction is of some importance to the European legal harmonisation debate in that there is one school of thought which argues the case for legal convergence between the civil and the common law tradition on the basis that there is a common genealogical connection between the two traditions. There was once, so it is argued, a common legal tradition in Europe.³⁷ The difficulty with this approach is that it is biased towards bringing out the common points between the objects of comparison within a criterion that is itself governed by a functional objective, namely the desirability of European harmonisation of private law.³⁸ Now this may be a worthwhile objective and, if so, the genealogical method is one perfectly respectable means of arguing the case. However, it has to be asked if this is really comparative law, rather than just an exercise in European legal history, since there is as such little or no comparison being employed with the aim of discovering new knowledge. In other words the method (genealogical) and the function (harmonisation) are conflated in support of a particular argument itself forming part of the function. This is not to say that an analogical approach would necessarily avoid these difficulties, for one could still conflate method (the structure of law) with the function (harmonisation of structures). However, it would certainly help avoid the problem of assuming similarity.³⁹

Another methodological starting point concerns taxonomy.⁴⁰ What kind of classification categories should be employed by the comparatist? If one looks at the European harmonisation texts being produced at the moment these seem simply to reproduce the Gaian institutional system.⁴¹ The world is still divided into contract, tort (delict), property, public law and so on. This scheme is by no means devoid of social science importance. Indeed quite the opposite, yet several questions arise. The first, of course, concerns the extent to which these traditional legal categories actually relate to the empirical acts, activities and operations that go to make up the social facts that are of interest to lawyers. Do the Principles of European Contract Law (PECL) provide an accurate picture of what business people and consumers actually do? One might note here that from a statistical point of view the great majority of contractual claims started in the English courts in any one year are actions in debt for a specific sum of money, usually the price for goods supplied or services rendered.⁴² Given that the same is probably true for most European countries, does this not mean that the common law’s medieval categories of debt and trespass were at least as socially accurate as anything to be found in Justinian? To what extent did those jurists who drew up the PECL do serious empirical research into the value of ‘contract’ as a legal category? This question becomes even more relevant in the light of the fact that debts are not just part of the law of obligations but also forms of intangible property.⁴³ Why, then, is the category of property any less suitable than contract? Why is there still an implied understanding within the harmonisation projects that the distinction between obligations and property continues to be of epistemological value? Perhaps it does remain of value, but one would have thought that taxonomical assumptions would want to be thoroughly tested, with respect to European societies, before one embarks on grand code projects to harmonise this taxonomical thinking. What seems to be happening is that legal taxonomy is being deemed a matter of authority and not research; the categories cohere as a ‘scientific’ structure and this seems to be enough to endow it with an epistemological validity analogous to that in the natural sciences.⁴⁴

A second question arises with respect to the relationship between social fact and the way these facts are described by lawyers. At what level of generality are facts being described (for example was the claimant in Donoghue v Stevenson⁴⁵ injured by a ‘bottle of ginger-beer’ or by a ‘product’)? How is time being perceived by the lawyers (does everyone die at the same time when a plane explodes)?⁴⁶ Are facts presented in terms of a series of dialectical oppositions (is ‘state’ of the premises being contrasted with the ‘layout’ of the premises)?⁴⁷ How is the behaviour and comportment of the people involved in a litigation problem being described (is the claimant being seen as ‘somewhat hysterical’ in not liking cricket)?⁴⁸ There is nothing new in these questions since they were first seriously posed (or reposed) by the American Realists. However, to what extent is the work done by these Realists actually used by comparative lawyers today? Could one say that the PECL is a text infused by the Realist scholarship? For example, how valuable is it for the PECL to use expressions such as ‘sufficient agreement’, ‘good faith’ and the like without some serious empirical research into the nature of trading and service transactions within European societies?⁴⁹

Thirdly, there is the problem of taxonomy and languages. To what extent do different languages classify objects in different ways? As Legrand pointed out:

Different languages, because they confront [reality] in different ways, thus offer different accounts of reality. No language can pretend to exhaust reality; no language offers a standpoint from which reality would be wholly visible. Rather, each language represents a choice which conditions the answers to be given by reality. Although they all address reality, languages can never be reduced to a single description of it.

The author goes on to give an example. He says:

Imagine, for example, a spherical, bouncy object. An anglophone will call it ‘ball.’ A francophone will call it ‘balle,’ but only if it is small. Otherwise, she will refer to it as a ‘ballon.’ In other words, there is one spherical, bouncy object and two renditions of it through two languages (‘ball’ and ‘balle’). The descriptions vary to the extent that the word ‘balle’ connotes the idea of smallness in the way the English ‘ball’ does not. The illustration shows that the complexity of reality will not always be fully captured by a single language: the notion of size is not rendered by the English ‘ball.’⁵⁰

No doubt many jurists involved in harmonisation projects take language translation seriously and recourse to the functional method is one way of attempting to tackle the difficult issue raised by Legrand. However, functionalism is only one methodological approach and possibly one that is seriously defective in some ways.⁵¹ Thus, not only will other methodological schemes such as structuralism, hermeneutics or dialectics produce different confrontations between reality and language,⁵² but they may well indicate that assuming similarity at the level of function itself is a more ambiguous process than the authority orientated jurist might think. One needs a language through which to describe ‘function’ but if these languages are themselves different there is the danger of creating new, and false, universalisms at the level of apparent social function.

Compare for example culpa in contrahendo in the civil law with liability for misrepresentation in the common law. Both doctrines have as one function the creation of liabilities in respect of events in the period before the actual formation of a binding contract. Yet, misrepresentation also has the function of limiting parties to a contract from claiming that a contract can be avoided on the grounds of mistake.⁵³ In other words its functions are complex and these can, in turn, only be understood by recourse to structuralist and dialectical methods in as much as the rules of misrepresentation go far in defining the limits of notions such as ‘good faith’, or ‘reasonableness’ and ‘mistake’. If there are strictly defined liabilities with respect to words uttered before a contract it would seem to follow as a matter of dialectical logic that if one remains silent there cannot be liability.⁵⁴ One function, then, of the rules of misrepresentation is to create a relatively clearly defined area of non-liability, or non-obligation, at the pre-contractual stage. It is much less clear if the rules relating to pre-contractual obligations and (or) liability in the civil law have this function; indeed it would probably be an error for a comparatist to assume that they do. As Legrand says, the complexity of reality will not always be fully captured by a single language.

What the present status of comparative law is achieving, therefore, are insights not just at the non-domestic legal level but equally at the level of domestic legal scholarship. Comparative legal studies can help one to understand, for example, ontological and epistemological issues in domestic legal reasoning.⁵⁵ More importantly comparative law, with its emphasis on social science methodology, is permitting the legal scholar to gain new insights into domestic legal systems. Thus Annelise Riles, a legal anthropologist and comparative law specialist, writes:

Another implication of the increasingly obsolete character of the distinction between law and society is that the distinction between ‘insider’ and ‘outsider’ perspectives that once defined the difference between comparative lawyers and socio-legal scholars no longer adequately characterizes the disciplinary divide. . . .

And she later continues:

Comparative lawyers and socio-legal scholars increasingly understand that they are both insiders and outsiders, both participants and critics, at once. . . . Although Law and Society scholars have long shown some antipathy towards ‘theory’ and comparative lawyers have shown some antipathy towards empiricism, there is consensus now that scholarship in both fields needs to be both theoretically informed and empirically grounded – and that different mixes of these two elements should be encouraged and appreciated.⁵⁶

Riles goes on to conclude that this ‘focus in turn has engendered a new dialogue between comparative lawyers and socio-legal scholars’.⁵⁷

The importance of these observations by Annelise Riles is twofold. First, she is clearly suggesting that law does have its own particular contribution to make to the social sciences in general and such an observation is important when placed alongside Berthelot’s exclusion of the discipline of law from his collective work on social science epistemology. Riles would seemingly be implying that the Berthelot attitude is perhaps misguided.⁵⁸ Secondly, Riles’ observations are important in that they make it very clear that the comparative lawyer cannot do serious work if located simply within the ‘internal’, and thus authority-orientation governed, epistemological framework of law. The comparatist must be guided by the spirit of enquiry if any serious work is to emerge from comparative law. What, it may be asked, can be achieved from comparing say two legal texts, each from a different system, if the comparatist brings to bear on these texts a set of methods motivated only by the spirit of authority? The very idea of comparison implies, methodologically, both interdisciplinarity and the spirit of enquiry; and this interdisciplinarity ought not to be a one-way process. Domestic legal scholarship could have its own contribution to make to social science epistemology.

However, in order to appreciate how this interdisciplinary dimension to comparative law might provide insights into methodology in legal scholarship in domestic legal systems, one must first investigate two questions. The first question concerns methodology in the social sciences in general. Can one talk in terms of a unitary methodological regime or are there different methods for different disciplines? Indeed is there a plurality of methods within single disciplines? The second question concerns law as a discipline. Given that social science methodology can provide insights into legal reasoning,⁵⁹ why is it that there appears to be a lack of emphasis on methodology and epistemology not just in traditional legal scholarship but equally in legal education?⁶⁰ Why, in short, are the questions posed within legal scholarship seemingly so restricted in their scope?⁶¹

III. METHODOLOGY AND EPISTEMOLOGY IN THE SOCIAL SCIENCES

With respect to the first question, Jean-Michel Berthelot, in one of his last published pieces, reminded one that since the nineteenth century social science knowledge has traditionally been dominated by a single model, that of positivism. This model emphasises the three characteristics of experimentation, objectivism and reductionism, themselves motivated by a desire to escape from metaphysical and theological speculation. Positivism took as its object the facts of the world and in the social sciences this meant that the object of this scientific approach was the human. As Berthelot noted, the gains that flowed from this model were considerable. It incited rigour and methodological innovation and it went far in creating a science of mankind, based not on religion or philosophical speculation but on empirical reality.⁶²

However, within positivism there developed a debate about method that is encapsulated in the illuminating example given by Berthelot. There can be found on mountain paths small piles of stones in the form of a pyramid and should one wish to reflect on this phenomenon in terms of a unified scientific model of the type that is dominant in the natural sciences, the scheme of intelligibility that comes into play is that of causality. What caused this phenomenon and what are the physical laws that have given rise to its presence?⁶³ This causal scheme in its turn brings into play a particular kind of reasoning, that of deduction. Once one knows the physical laws involved in this kind of phenomenon all that is necessary is the syllogism; the physical laws (major premise) are brought into relation with the particular circumstances (pyramid of stones, the minor premise), and the explanation follows as a conclusion. Yet this approach fails to explain that the pile of stones is a sign indicating that the path is a safe one for the traveller. There is more to the pile than a simple pyramid of stones of which the cause might be this or that. There is behind it an intention to signify something and this requires a different scheme of understanding that will reveal its sense or signification.⁶⁴

As Berthelot went on to point out, this dichotomy was formalised within the German social science tradition by an epistemological approach that asserted that social facts were different from the facts of the physical world. They were cultural, arising from human intentionality, and thus required a scheme of intelligibility that was specific, interpretative and based upon the understanding of their sense. In turn this gave rise to the dichotomy between explanation and understanding⁶⁵ or, more famously, between the sciences of nature and the sciences of the spirit (Geiteswissenschaften).⁶⁶ This formal opposition then broke down into a series of other more fragmented dichotomies, such as the ones between structure and history and causes and reasons.⁶⁷ The result is that knowledge turns out to be far more complex than the unitary model of positivism would suggest. The ‘opposition between explanation and comprehension’, observed Berthelot, ‘has not led to the establishment of clearly distinct epistemological regimes’; it has, instead, given rise to epistemological pluralism not just within the social sciences in general but within the various individual disciplines that make up this domain.⁶⁸ One cannot, in other words, say that in the natural sciences it is the causal scheme which dominates while in the social sciences it is the hermeneutical approach that is relevant. Within all the individual social science disciplines the two regimes provoke not just methodological and epistemological controversies but equally tend to invalidate each other, something which hardly encourages epistemological clarification. Indeed, the controversy goes much deeper in that it threatens the whole foundation upon which positivism is built; there is, so argue the textualists (and Post-Modernists), no such thing as objective knowledge or objective reality in social science (and indeed in the natural sciences); there are only texts and thus all knowledge is interpretative.⁶⁹ All knowledge is hermeneutics.

The conclusion that Berthelot draws from this complexity is, as has been mentioned, that there is no single, or even double, epistemological regime that governs the social sciences. Instead one must think in terms of epistemological pluralism and it is in this context that his work on schemes of intelligibility assumes its pioneering importance. He has asserted, at least in his earlier work,⁷⁰ that at the centre of this pluralistic approach are six schemes of intelligibility and while he later argued that these six schemes were not in themselves a transcendental theory of social science – they were fundamental ontological and epistemological points of view on social reality – they nevertheless remain relevant.⁷¹ They are an important part of a more complex set of reasoning methods, paradigms and programmes.⁷²

These schemes have been quite exhaustively discussed elsewhere,⁷³ but several general points need repeating of which the most important is this. The operation of these methodological schemes – the causal, functional, structural, hermeneutical, actional and dialectical⁷⁴ – can be understood, as has just been said, only in the more general epistemological context of reasoning methods (induction, deduction and analogy) and paradigm orientations.⁷⁵ With regard to the latter, two in particular are central to social science methodology.

The first, the dichotomy between a holistic and an individualist approach which often translates into the level of operation from which the intellectus observes (so to speak) the res. As one social science theorists puts it, ‘social reality cannot be reduced to a single equation’; and so when ‘the level of operation changes the reality being observed changes’.⁷⁶ Consequently, when one is comparing say a structural approach with an actional, it has to be remembered that the two schemes probably involve two different paradigm orientations. A structural approach tends to function on a macro level, while an actional, which focuses on the individual agent, often suggests a micro level.⁷⁷ The historian working on la longue durée will not of course see the individuals who have shaped certain events but this does not mean that they do not exist; equally the historian who focuses on certain historical individuals will not see social classes and institutions but, again, this does not mean that they are not there.⁷⁸ It is this level problem that helps give statistics their bad name (‘lies, damned lies and statistics . . .’). One can predict the number of people that will be killed on the road next year in a particular country and one can predict that the majority of those entering into the universities in some countries will come from middle class families. However, one cannot predict which individual persons will be killed on the road and statistics will not tell one why this or that working class child will not go to university. The sociologist will need to operate at the level of individual families in order to understand the precise reasons why a particular child does not go into higher education.

A second paradigm orientation that must be appreciated when investigating schemes of intelligibility is the dichotomy between a naturalist and a culturist approach. Are social phenomena to be considered as a continuity of natural phenomena and thus subject to the same mechanisms? Or are social phenomena to be seen as being a matter of cultural norms and values formed within particular groups or societies which, through the mediation of socialisation, enculturation or inculcation, define the sense of the behaviour patterns or social practices?⁷⁹

Only gold members can continue reading. Log In or Register to continue

Fastest Law Search Engine

Does One Need an Understanding of Methodology in Law Before One Can Understand Methodology in Comparative Law?

I. THE PROBLEM OF INTERDISCIPLINARITY

II. METHODOLOGY AND THE STATUS OF COMPARATIVE LAW

III. METHODOLOGY AND EPISTEMOLOGY IN THE SOCIAL SCIENCES