Varieties of functionalism

‘Functionalism’ is a broad term. In the field of comparative law, it denotes at least two distinct, yet related, currents of thought. The first is linked to methodological concerns. In this context, an analysis of the functionalist heritage involves an assessment of the strengths and weaknesses of the ‘functionalist method’, which is one of the best-known working tools in comparative legal studies. The second understanding of ‘functionalism’ evokes the idea that law responds to society's needs – a view which some comparatists find more attractive than others in order to explain differences and similarities between the world's legal systems. Today, both varieties of functionalism are being challenged from different angles.

The functional method in comparative law: a standard account

Before considering the basic tenets of the functional method in comparative law, it is worth recalling that it never represented the sole or even the dominant approach to comparative legal studies during the twentieth century. Nor is it the prevailing method today despite the fact that some initiatives, such as the research being conducted by a large number of scholars under the flag of the ‘Common Core of European Private Law’, have breathed new life into it. There have always been other routes to comparison. Among the best-known ones, especially in Europe and in the United States, there is the tradition which analyses existing institutions and rules in their historical context.