THE APPLICABILITY OF COMPARATIVE CONCEPTS P van Laer(Maastricht University (1) Readers are reminded that this work is protected by copyright While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use Contents 1 Introduction 1. I Comparative concepts 1.2 The applicability of comparative concepts 2. The formation of comparative concepts 2. 1 Extensional concepts 2.2 Functional concepts 2.3 Immanent concepts 3. Comparative concepts of empirical use 3. 1 Extensional concepts 3.2 Functional concepts 3.3 Immanent concepts 4. Comparative concepts on the Internet 4. 1 The Index to Foreign Legal Periodicals 4.2 Comparative thesauruses? 5 Conclusions References Footnotes 1 Introduction 1. I Comparative concepts It is still an open question posed to the discipline of comparative law how to develop a satisfactory set of concepts to be used for stating and thinking about particular problems or hypotheses. To this question, I have elaborated some answers in my doctoral dissertation( Van Laer, 1997; in Dutch) The book has an English summary, which is also available on the Internet (http://www-edocs.unimaas.nl/general/ism1997.htm#cvl).TheEnglishsummarygivesanideaof two subjects, comparative systems of arrangement and characterization in private international law
THE APPLICABILITY OF COMPARATIVE CONCEPTS C.J.P. van Laer (Maastricht University)(1) Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Contents 1. Introduction 1.1 Comparative concepts 1.2 The applicability of comparative concepts 2. The formation of comparative concepts 2.1 Extensional concepts 2.2 Functional concepts 2.3 Immanent concepts 3. Comparative concepts of empirical use 3.1 Extensional concepts 3.2 Functional concepts 3.3 Immanent concepts 4. Comparative concepts on the Internet 4.1 The Index to Foreign Legal Periodicals 4.2 Comparative thesauruses? 5. Conclusions References Footnotes 1. Introduction 1.1 Comparative concepts It is still an open question posed to the discipline of comparative law how to develop a satisfactory set of concepts to be used for stating and thinking about particular problems or hypotheses. To this question, I have elaborated some answers in my doctoral dissertation (Van Laer, 1997; in Dutch). The book has an English summary, which is also available on the Internet (http://www-edocs.unimaas.nl/general/ism1997.htm#CvL). The English summary gives an idea of two subjects, comparative systems of arrangement and characterization in private international law
These subjects are discussed in the book, not in this article. This article is intended to shed light on the arguments given in the other chapters of the book. (2 he core issue of this article is the suitability of comparative concepts for comparat studies. The question of whether such comparative concepts are of any use has not been conclusively. In this article, I have attempted to synthesize some important points from of the literature. But first, some introductory remarks will be made in order to offer a framework Comparative concepts belong to the conceptual apparatus with which the comparatist can approach his discipline, a field which is not limited to only one legal system. Specifically, comparative concepts are concepts that are applied in micro-comparative research, ie. research carried out at the level of parts of legal systems. Correspondingly, comparative concepts are inadequate for dealing with legal families or with legal systems in their entirety. The proposition of this article is that comparative concepts enable us to compare legal rules belonging to different legal systems. Examples of comparative concepts are 'adoption and unjust enrichment, which refer to legal rules within different systems The premise of this article is that comparative concepts are criteria on the basis of which the rules of different legal systems may be compared. The legal rules to be compared must have the intension' of the comparative concept. This condition can be explained as follows: the intension includes the characteristics determining the applicability of the concept. The intension of the omparative concept is important since the intension must be explicit in order to make understandable which characteristics of legal rules account for their comparability 1. 2 The applicability of comparative concepts As stated above, comparative concepts are criteria on the basis of which the rules of different legal systems may be compared. This premise needs some further explanation Clusters of features are associated with terms like 'adoption' and unjust enrichment The comparatist will have to know which legal rules are the referents of these terms. The criteria of comparative concepts must be observable criteria enabling us to investigate empirically the rules belonging to different legal systems. However, the researcher preparing his investigation cannot be sure that the chosen concept includes observable criteria for its application. Results from other comparatists, if available, are not al ways sufficient to justify this conclusion. Therefore, in the first phase of comparative research, it is wise to assume only that legal rules are comparable Comparative concepts do not stand for innate notions which are present in the human mind, but for observable criteria The first phase of comparative research is of primary importance since observable criteria may prevent a waste of time in a later phase. The comparatist wants to study real referents of the comparative concept he has chosen as his starting point. Consequently, a hypothesis must be tested on the legal systems compared. I call a hypothesis containing a comparative concept the comparability assumption An example of such a comparability assumption is the following statement: because of the comparative concept of adoption, the
These subjects are discussed in the book, not in this article. This article is intended to shed light on the arguments given in the other chapters of the book.(2) The core issue of this article is the suitability of comparative concepts for comparative legal studies. The question of whether such comparative concepts are of any use has not been answered conclusively. In this article, I have attempted to synthesize some important points from of the literature. But first, some introductory remarks will be made in order to offer a framework. Comparative concepts belong to the conceptual apparatus with which the comparatist can approach his discipline, a field which is not limited to only one legal system. Specifically, comparative concepts are concepts that are applied in micro-comparative research, i.e. research carried out at the level of parts of legal systems. Correspondingly, comparative concepts are inadequate for dealing with legal families or with legal systems in their entirety. The proposition of this article is that comparative concepts enable us to compare legal rules belonging to different legal systems. Examples of comparative concepts are 'adoption' and 'unjust enrichment', which refer to legal rules within different systems. The premise of this article is that comparative concepts are criteria on the basis of which the rules of different legal systems may be compared. The legal rules to be compared must have the 'intension' of the comparative concept. This condition can be explained as follows: the intension includes the characteristics determining the applicability of the concept. The intension of the comparative concept is important since the intension must be explicit in order to make understandable which characteristics of legal rules account for their comparability. 1.2 The applicability of comparative concepts As stated above, comparative concepts are criteria on the basis of which the rules of different legal systems may be compared. This premise needs some further explanation. Clusters of features are associated with terms like 'adoption' and 'unjust enrichment'. The comparatist will have to know which legal rules are the referents of these terms. The criteria of comparative concepts must be observable criteria enabling us to investigate empirically the rules belonging to different legal systems. However, the researcher preparing his investigation cannot be sure that the chosen concept includes observable criteria for its application. Results from other comparatists, if available, are not always sufficient to justify this conclusion. Therefore, in the first phase of comparative research, it is wise to assume only that legal rules are comparable. Comparative concepts do not stand for innate notions which are present in the human mind, but for observable criteria. The first phase of comparative research is of primary importance since observable criteria may prevent a waste of time in a later phase. The comparatist wants to study real referents of the comparative concept he has chosen as his starting point. Consequently, a hypothesis must be tested on the legal systems compared. I call a hypothesis containing a comparative concept the 'comparability assumption'. An example of such a comparability assumption is the following statement: because of the comparative concept of 'adoption', the
Dutch rules for full adoption can be compared to the Austrian rules governing ' limited adoption Such sentences do not give immediate practical advice; they say something about the legal rules of different systems. If the comparability hypothesis is verified, the Dutch rules are really comparable to the Austrian rules. A comparability assumption which cannot be falsified does not contain observable criteria. To find observable criteria for the comparability assumption, the researcher can begin by analysing legislative definitions in order to determine the respect in which he can compare different legal systems. The following definitions of the Dutch appartementsrecht' and of the GermanWohnungseigentum' will illustrate this seemingly simple preparation of comparative studies. The Dutch 'appartementsrecht'is defined as follows: 'An apartment right means a share in the property which is involved in the division and includes the right to the exclusive use of certain portions of the building which, as indicated by their layout, are intended to be used as separate units.(3)Section I of the German Condominium Act definesWohnungseigentum'differently Residential property is the separate ownership of an apartment in connection with the co-ownership share of the joint property, to which it belongs. (4) Since the right to the exclusive useis mentioned only by the Dutch legislator, this characteristic does not offer a common perspective which could be chosen as a starting point. By contrast, the legislative definitions allow the researcher to compare in the uniform perspective of 'co-ownership. The comparative concept of'co-ownership'is the unequivocal intension which may be part of a comparability assumption. If hypothesis is verified, it is possible to make a real distinction of differences and similarities tween the Dutch 'appartementsrecht' and the German'Wohnungseigentum Concomitantly, I do not consider equivocal intensions to be observable criteria since concepts which prove to have different meanings cause the misinterpretation of research results. These comparative concepts are without empirical use for the reason that they amount to mixing up differences and similarities By definition, comparative concepts that are not applicable in comparative studies, are not applicable either in areas in which comparative law functions as an aid. Correspondingly, I make a distinction between the direct and indirect applicability of comparative concepts: their usefulness in comparative law(direct)and their usefulness in areas of application outside comparative studies (indirect). In sections 2 and 3 the conditions under which comparative concepts are directly useful are discussed; in section 2 three different forms of comparative concepts are dealt with and section 3 examines their relative usefulness in comparative law. Section 4 discusses the Internet as an area of practical application in which comparative law merely serves as an aid 2. The formation of comparative concepts 2. 1 Extensional concepts This section contains a brief analysis of three forms of comparative concepts: extensional concepts, functional concepts and immanent concepts. These forms have to be distinguished before examining their relative usefulness in comparative law, the subject of section 3. First, the formation of extensional concepts will be made clear
Dutch rules for 'full adoption' can be compared to the Austrian rules governing 'limited adoption'. Such sentences do not give immediate practical advice; they say something about the legal rules of different systems. If the comparability hypothesis is verified, the Dutch rules are really comparable to the Austrian rules. A comparability assumption which cannot be falsified does not contain observable criteria. To find observable criteria for the comparability assumption, the researcher can begin by analysing legislative definitions in order to determine the respect in which he can compare different legal systems. The following definitions of the Dutch 'appartementsrecht' and of the German 'Wohnungseigentum' will illustrate this seemingly simple preparation of comparative studies. The Dutch 'appartementsrecht' is defined as follows: 'An apartment right means a share in the property which is involved in the division and includes the right to the exclusive use of certain portions of the building which, as indicated by their layout, are intended to be used as separate units'.(3) Section 1 of the German Condominium Act defines 'Wohnungseigentum' differently: 'Residential property is the separate ownership of an apartment in connection with the co-ownership share of the joint property, to which it belongs'.(4) Since 'the right to the exclusive use' is mentioned only by the Dutch legislator, this characteristic does not offer a common perspective which could be chosen as a starting point. By contrast, the legislative definitions allow the researcher to compare in the uniform perspective of 'co-ownership'. The comparative concept of 'co-ownership' is the unequivocal intension which may be part of a comparability assumption. If this hypothesis is verified, it is possible to make a real distinction of differences and similarities between the Dutch 'appartementsrecht' and the German 'Wohnungseigentum'. Concomitantly, I do not consider equivocal intensions to be observable criteria since concepts which prove to have different meanings cause the misinterpretation of research results. These comparative concepts are without empirical use for the reason that they amount to mixing up differences and similarities. By definition, comparative concepts that are not applicable in comparative studies, are not applicable either in areas in which comparative law functions as an aid. Correspondingly, I make a distinction between the direct and indirect applicability of comparative concepts: their usefulness in comparative law (direct) and their usefulness in areas of application outside comparative studies (indirect). In sections 2 and 3 the conditions under which comparative concepts are directly useful are discussed; in section 2 three different forms of comparative concepts are dealt with and section 3 examines their relative usefulness in comparative law. Section 4 discusses the Internet as an area of practical application in which comparative law merely serves as an aid. 2. The formation of comparative concepts 2.1 Extensional concepts This section contains a brief analysis of three forms of comparative concepts: extensional concepts, functional concepts and immanent concepts. These forms have to be distinguished before examining their relative usefulness in comparative law, the subject of section 3. First, the formation of extensional concepts will be made clear
The formation of extensional concepts is the listing of common elements which may be present in several legal systems. These common elements are to be found at the intersection of different sets of legal rules, or parts of rules, belonging to different systems. In this view, the national sets of rules could be identified by means of legal terms, e.g. the Dutch 'appartementsrecht', the German Wohnungseigentum'and the French 'copropriete des immeubles batis. Without choosing any intension for the comparative concept, the extensional concept of ' apartment ownership refers to the common elements at the intersection The following example will illustrate the formation of extensional concepts. The comparatist may ahl"and of English theft, respectively: W takes moveable property not his own from another with the intention of unlawfully appropriating it to himself shall be punished.. (5)and: 'A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. 'The first rule has been identified by the german legal term Diebstahl and the second one by the term theft in the English Theft Acts. Further, the common elements have to be found at the intersection of these rules. The comparatist may decide that 'property' and'appropriation' are common elements, intuitively excluding unlawfully'and'dishonestly'. He may conclude that the German Diebstahl and the English theft are comparable since extensional concepts result from the listing of common elements 2.2 Functional concepts The formation of functional concepts occurs in relation to social problems to which legal rules are a solution. In this view, the starting point for comparison is not to be found in law itself but in social problems. For instance, different rules of full adoption and of limited adoption will be regarded as a means of solving the problems of neglected children. Functional concepts arise from the perspective of social science. This perspective is external to the legal systems under comparison. Correspondingly, the complete abstraction from national concepts must be achieved Functional concepts are expected to refer to legal rules although functional concepts should be completely independent of legal concepts Functional concepts are related to factual needs or problems of different societies. In this view, the legal rules of different systems would produce social effects on human behaviour which, in its turn, is expected to meet the needs of societies. Correspondingly, the comparatist has to identify common needs or common problems and he has to determine which legal rules are solutions to these common problems. Legal rules considered to be solutions justify the formation of the functional concept. These premises underlying the functional approach lead to the starting point for comparison: the functional concept, e.g. 'apartment ownership, permits the comparison of rules of different legal systems in respect of similar needs or problems such as housing shortage 2.3 Immanent concepts
The formation of extensional concepts is the listing of common elements which may be present in several legal systems. These common elements are to be found at the intersection of different sets of legal rules, or parts of rules, belonging to different systems. In this view, the national sets of rules could be identified by means of legal terms, e.g. the Dutch 'appartementsrecht', the German 'Wohnungseigentum' and the French 'copropriété des immeubles bâtis'. Without choosing any intension for the comparative concept, the extensional concept of 'apartment ownership' refers to the common elements at the intersection. The following example will illustrate the formation of extensional concepts. The comparatist may juxtapose the following rules of German 'Diebstahl' and of English 'theft', respectively: 'Whoever takes moveable property not his own from another with the intention of unlawfully appropriating it to himself shall be punished ...',(5) and: 'A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.' The first rule has been identified by the German legal term 'Diebstahl' and the second one by the term 'theft' in the English Theft Acts. Further, the common elements have to be found at the intersection of these rules. The comparatist may decide that 'property' and 'appropriation' are common elements, intuitively excluding 'unlawfully' and 'dishonestly'. He may conclude that the German 'Diebstahl' and the English 'theft' are comparable since extensional concepts result from the listing of common elements. 2.2 Functional concepts The formation of functional concepts occurs in relation to social problems to which legal rules are a solution. In this view, the starting point for comparison is not to be found in law itself but in social problems. For instance, different rules of 'full adoption' and of 'limited adoption' will be regarded as a means of solving the problems of neglected children. Functional concepts arise from the perspective of social science. This perspective is external to the legal systems under comparison. Correspondingly, the complete abstraction from national concepts must be achieved. Functional concepts are expected to refer to legal rules although functional concepts should be completely independent of legal concepts. Functional concepts are related to factual needs or problems of different societies. In this view, the legal rules of different systems would produce social effects on human behaviour which, in its turn, is expected to meet the needs of societies. Correspondingly, the comparatist has to identify common needs or common problems and he has to determine which legal rules are solutions to these common problems. Legal rules considered to be solutions justify the formation of the functional concept. These premises underlying the functional approach lead to the starting point for comparison: the functional concept, e.g. 'apartment ownership', permits the comparison of rules of different legal systems in respect of similar needs or problems such as housing shortage. 2.3 Immanent concepts
The formation of immanent concepts occurs as a result of simplifying national legal concepts Immanent concepts are only criteria for the common characteristics shared by the national concepts being compared. An example of an immanent concept is 'adoption, a concept which exclusively contains the shared characteristics of full and 'limited adoption. Immanent concepts are criteria for common characteristics by abstracting from national characteristics which do no have counterparts in the other legal system under investigation. Specific sanctions connected to violations of legal rules are examples of such national characteristics It should be pointed out here that immanent concepts are non-functional concepts. The formation of immanent concepts does not require complete abstraction from national concepts. In this view the starting point for comparison should be found in law itself, not in social problems. Immanent concepts are neither functional concepts nor extensional concepts. As regards the second distinction, the formation of immanent concepts is not the listing of common elements to be found at the intersection of different sets of legal rules. Immanent concepts do not result from common elements but from criteria commonly used by national concepts. The sameness of intension of immanent concepts entails the comparability of legal rules belonging to different systems 3. Comparative concepts of empirical use 3. 1 Extensional concepts This section contains an assessment of the usefulness of the three different forms of comparative concepts: extensional concepts, functional concepts and immanent concepts. The relative usefulness of these forms depends on their possibilities for empirical use in comparative law. As remarked in subsection 1. 2, the criteria for comparative concepts must be observable and unequivocal, enabling us to investigate empirically the rules belonging to different legal system The comparatist must test the comparability assumption on the legal systems compared since he wants to study real referents of the comparative concept he has chosen as his starting point. These conditions are important to assess the suitability of comparative concepts for direct use. First, the question of whether extensional concepts are of any use will be answered There is a controversy between the well-known comparatists Constantinesco and Kokkini, which helps to assess the relative usefulness of extensional concepts. The common comparative denominator which Constantinesco proposes is nothing more than an extensional concept. He states that common elements are present within several legal systems to provide a common comparative denominator. In his opinion one can start to compare as many legal rules as one desires since sufficient relationships govern the selected rules of different legal systems. He goes further when he asserts that the legal rules to be compared provide their own comparability,at least in the initial phase of comparative research. (6) According to Constantinesco, comparative concepts are useless in the initial phase of research
The formation of immanent concepts occurs as a result of simplifying national legal concepts. Immanent concepts are only criteria for the common characteristics shared by the national concepts being compared. An example of an immanent concept is 'adoption', a concept which exclusively contains the shared characteristics of 'full' and 'limited' adoption. Immanent concepts are criteria for common characteristics by abstracting from national characteristics which do not have counterparts in the other legal system under investigation. Specific sanctions connected to violations of legal rules are examples of such national characteristics. It should be pointed out here that immanent concepts are non-functional concepts. The formation of immanent concepts does not require complete abstraction from national concepts. In this view, the starting point for comparison should be found in law itself, not in social problems. Immanent concepts are neither functional concepts nor extensional concepts. As regards the second distinction, the formation of immanent concepts is not the listing of common elements to be found at the intersection of different sets of legal rules. Immanent concepts do not result from common elements but from criteria commonly used by national concepts. The sameness of intension of immanent concepts entails the comparability of legal rules belonging to different systems. 3. Comparative concepts of empirical use 3.1 Extensional concepts This section contains an assessment of the usefulness of the three different forms of comparative concepts: extensional concepts, functional concepts and immanent concepts. The relative usefulness of these forms depends on their possibilities for empirical use in comparative law. As remarked in subsection 1.2, the criteria for comparative concepts must be observable and unequivocal, enabling us to investigate empirically the rules belonging to different legal systems. The comparatist must test the comparability assumption on the legal systems compared since he wants to study real referents of the comparative concept he has chosen as his starting point. These conditions are important to assess the suitability of comparative concepts for direct use. First, the question of whether extensional concepts are of any use will be answered. There is a controversy between the well-known comparatists Constantinesco and Kokkini, which helps to assess the relative usefulness of extensional concepts. The common comparative denominator which Constantinesco proposes is nothing more than an extensional concept. He states that common elements are present within several legal systems to provide a common comparative denominator. In his opinion one can start to compare as many legal rules as one desires since sufficient relationships govern the selected rules of different legal systems. He goes further when he asserts that the legal rules to be compared provide their own comparability, at least in the initial phase of comparative research.(6) According to Constantinesco, comparative concepts are useless in the initial phase of research