Taking Functionalism Seriously: On the Bright Future of a Contested Method

AuthorJan M. Smits
Published date01 December 2011
Date01 December 2011
DOIhttp://doi.org/10.1177/1023263X1101800409
Subject MatterLegal Debates
554 18 MJ 4 (2011)
tAKInG FUnCtIonALIsM seRIoUsLy: on tHe
BRIGHt FUtURe oF A ContesteD MetHoD
J M. S*
‘By walking one makes the roa d.’1
§1. INTRODUCTION
In a thoughtfu l and balanced contribution,2 Jaa kko Husa proposes his view of the role
of functionalism in comparing laws. He claims t hat the functional approach is not a
theoretically rened method or a legal theory, but rather a ‘methodologica l metaphor’
telling comparatists: ‘remember you are in a dierent system now.’ is makes
functional ism a mere rule of thumb: it allows comparatists to rough ly compare dierent
jurisdictions, but it also warns them that it would be w rong to focus on the study of
rules: rules t hat look the same may actually b e dierent and rules that look dierent may
actually b e the same. is places Husa’s view in between the praes umptio similitudinis of
Zweigert and Kötz3 and the praesumptio d issimilitudinis of Pierre Legrand.4
Husa thus debunks f unctionalism in two respect s. Firstly, he exposes the hollowness
of the huge debate about what type of method f unctionalism actua lly is,5 claimi ng that it
*1 Chair of European P rivate Law, Maastricht Universit y and Research Professor of Compar ative Legal
Studies, Univers ity of Helsinki.  is contribution was written for t he ‘Legal Debates’-sec tion of the
Maastricht Jo urnal of European and C omparative Law as a follow-up to the M aastricht Europe an
Private Law Inst itute (MEPLI) Roundta ble on e Use of the Functiona l Method in Europea n and
Comparative Prop erty Law, held in Maast richt on 17June 2011.
1 Usually asc ribed to Franz Kaa, but in re ality from Antonio Machado (‘Al anda r se hace camino’),
Proverbios y cant ares XXIX, Camp os de Castilla 1912.
2 J. Husa, ‘Metamor phosis of Functionalism – or Ba ck to Basics?’, in this issue of Maa stricht Journal of
European and Comparative Law.
3 K. Zweigert and H. Köt z, Introduction to Comparative Law (3rd edition, Oxford Unive rsity Press, O xford
1998), p.39–40: ‘di erent legal systems gi ve the same or very simi lar solutions, even as to d etail, to the
same problems of life .’
4 P. Legrand, ‘e Ret urn of the Repressed : Moving Comparat ive Legal Studie s Beyond Pleasure’, Tulane
Law Review 75 (2001), p. 1033–1051, at 1048–1049. Compare R. Hyland, ‘Compar ative Law’, in D.
Patterson (ed.), A Companion to Phil osophy of Law and Legal eor y (Cambridge Mass. 1996), p.184–
199, at 194.
5 See, instead of m any others: M. Graziadei , ‘e Functionalist Her itage’, in P. Legrand and R. Munday
(eds .), Comparative Legal Studies: Traditions and Transitions (Cambridge University Press, Ca mbridge

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT