Legal Origins, Functionalism, and the Future of Comparative Law
![handle is hein.journals/byulr2009 and id is 1893 raw text is: Legal Origins, Functionalism, and the Future of
Comparative Law
Christopher A. Whytock*
I. INTRODUCTION
Functionalism is historically one of the most influential
approaches to the study of comparative law,1 and perhaps the most
controversial.2 According to functionalism, comparative legal
scholars should understand different countries' laws as solutions to
similar social problems.3 As Ralf Michaels argues, The functional
method has become both the mantra and the bete noire of
comparative law. For its proponents, functionalism offers the most,
perhaps the only, fruitful method; to its opponents, it represents
everything bad about mainstream comparative law.4 Some leading
comparative legal scholars claim that functionalism is
compromised and suffering from exhaustion, and that new
. Associate Professor of Law, University of Utah S.J. Quinney College of Law. I thank
Ralf Michaels for exceptionally helpful comments on an earlier paper in which I started to
develop the ideas about functionalism presented in this Article.
1. See Ginter Frankenberg, Critical Comparisons: Re-thinking Comparative Law, 26
HARv. INT'L L.J. 411, 428-29 (1985) (calling functionalism the modern paradigm);
Mathias Reimann, The Progress and Failure of Comparative Law in the Second Half of the
Twentieth Century, 50 AM. J. COMP. L. 671, 679 (2002) (describing insights of the functional
approach as having become generally accepted in the past fifty years). But see Michele
Graziadei, The Functionalist Heritage, in COMPARATIVE LEGAL STUDIES: TRADITIONS AND
TRANSITIONS 100 (Pierre Legrand & Roderick Munday eds., 2003) ([Functionalism] is one
of the best-known working tools in comparative legal studies .... [But] 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 .... ).
2. See Richard Hyland, Comparative Law, in A COMPANION TO PHILOSOPHY OF LAW
AND LEGAL THEORY 184, 188 (Dennis Patterson ed., 1996) (noting the importance of
functionalism, both in terms of its exceptional contributions and the intensity of the criticism it
has provoked).
3. See KONRAD ZWEIGERT & HEIN KOTZ, INTRODUCTION TO COMPARATIVE LAW 34
(3d ed. 1998) (describing functionalist approach).
4. Railf Michaels, The Functionalist Method of Comparative Law, in THE OXFORD
HANDBOOK OF COMPARATIVE LAW 339, 340 (Mathias Reimarm & Reinhard Zimmermann
eds., 2006) (citation omitted).
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Legal Origins, Functionalism, and the Future of Comparative Law
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