Research Handbooks in Comparative Law series
Edited by Pier Giuseppe Monateri
Chapter 5: The Functional Method
James Gordley 1. INTRODUCTION If you mention the functional method to a comparative lawyer, the ﬁrst text he may think of is Einführung in die Rechtsvergleichung, by Konrad Zweigert and Hein Kötz,1 translated by Tony Weir as An Introduction to Comparative Law.2 According to the authors, ‘[t]he basic method of all comparative law is that of functionality’.3 Yet they distrusted discussions of that method.4 Indeed, as Ralf Michaels noted, despite much discussion by others, ‘as a theory [the functional method] hardly exists …’.5 In practice, moreover, one ﬁnds a ‘methodological mishmash’.6 Yet many comparative lawyers accept some form of the functional method.7 The reason is not that its theoretical foundations are clear and compelling. The reason is that they ﬁnd it helps them to make sense of some of the similarities and differences among different legal systems. As Michaels said, ‘[o]ne reason for the methodological mishmash in comparative law is that the founders of the comparative method were more pragmatically than methodologically interested’.8 That statement implies that, on a pragmatic level, comparative lawyers have found that by using the method, they arrive at results they respect. In this chapter, instead of ﬁrst considering the efforts that have been made to describe or explain the functional method, we will look at an example of the method at work. The example, picked arbitrarily from many others, will be Arthur von Mehren’s discussion of the doctrine of offer and acceptance. It is not, of course, a salient doctrine...
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