THE CHOICE OF COMPARATIVE METHODOLOGY

THE FACTUAL APPROACH OF THE COMMON CORE PROJECT

As with any study in the Common Core Project, the methodology designed by the editors of this volume rests on the fundamentals of the general approach developed by Mauro Bussani and Ugo Mattei. The Common Core Project employs a factual approach to comparative law in two related respects.

First, in a Common Core comparison, both the ‘comparanda’ and the tertium comparationis are of a factual nature. Rather than contrasting the legal rules applicable to a common legal concept, the Common Core comparatist seeks to measure how courts in different legal systems would solve a common factual problem of societal life. This strategy takes inspiration from the method that Rudolf Schlesinger developed in the 1960s. By this method, a comparatist develops a questionnaire that asks legal scholars from different jurisdictions to explain how a set of hypothetical problems would likely be resolved in their respective legal systems. Because a Common Core comparatist, therefore, compares not the rules of law, but the application of them, the objects of comparisons are not conceptual content but predictions of factual events.

Second, the data on which the Common Core comparatist relies is factual in nature. Rather than looking to the content of legal rules and concepts to predict how a court would resolve a given problem, the comparatist studies both legal and non-legal predictors. Put differently, it concentrates on how a court, in fact, would apply the law. Here, the Common Core Project builds on Rodolfo Sacco's theory of ‘legal formants’. Sacco called these the ‘many different elements’ that the ‘living law’ contains, ranging from statutory rules to scholarly commentary, to other elements that might influence a judge's thinking not contained in the ratio decidendi of the court's opinion. Here, therefore, formal legal rules may provide the comparatist with an answer to its question, but not because the law itself is encapsulated in the logical structure of its semantic content. Rather, as judges tend to be susceptible to arguments deduced from formal legal sources, a legal rule is simply a significant indicator of a judge's decision in a given case.