17 Chi.-Kent J. Int'l & Comp. L. 1 (2017)

handle is hein.journals/chkjicl17 and id is 1 raw text is: 






     Micro-Meso-Macro Comparative Law: An Essay on the Methodology of
                                       Comparative Law

                                       Alessandro  Romano,



                                             Abstract

There  are strong analogies  between  the quest  for a methodology   of comparative  law  and  the

broader  debate on  the epistemology   of social and natural  sciences. In this vein, after having

explored the dispute between  holists and reductionists, I argue that the dichotomy between micro

and  macro  comparative  law ought  to be abandoned.  Building  on the insights of social theory, I

introduce a specific framework  to bridge the two levels of enquiry through a meso  analysis. This

framework   is applied to investigate the robustness of the findings of the legal origin theory.




I. Introduction


Identifying the right methodology  for the study of comparative law  has always been  the holy grail

of  comparatists,' and   the surge  of  new        comparative economics2 (NCE)  and  numerical

comparative  law3  (NCL)   reinvigorated this hunt of epic proportions.4 The  quarrel surrounding

these strands of literature stems primarily from the fact that NCE and NCL build on two  postulates.

The  first, and most apparent, is that legal rules must be  measurable   and commensurable.6   The


An earlier version of this paper was presented at the Annual Meeting of the Canadian Law and Economics Association
(CLEA) in Toronto, at the 11th Annual Meeting of the German Association of Law and Economics (GLEA) in Bozen,
at the Annual Meeting of Juris Diversitas (JD) held at the Swiss Institute of Comparative Law in Lausanne, and at the
2014 Annual Meeting of the Law and Development Institute (LDI) in Manchester. The comments and the suggestions
that I received at these meeting were extremely helpful. I am also particularly indebted to Miriam Buiten, Eleni
Frantziou, Yong Shik Lee, Ralf Michael, Roberto Pardolesi, Mathias Siems and Jack Vromen.
LUISS  Guido Carli, Department of Law.
1 See, Vernon V. Palmer, From Lerotholi to Lando: Some Examples of Comparative Law Methodology 53 AM. J. COMP.
L. 261, 262-263 (2005) (As an abstract matter, comparative law has but one method - to compare and contrast norms,
institutions, cultures, attitudes, methodologies, and even entire legal systems. But in practice the word is applied more
concretely. Method is now identified by the techniques by which comparisons are carried out, the word methodology
refers to the techniques used to compare different laws).
2 See Simeon Djankov, Edward Glaeser, Rafael La Porta, Florencio Lopez-de-Silanes & Andrei Shleifer, The New
Comparative Economics, 31 J. COMP. ECON. 595 (2003).
3 Mathias M. Siems, Numerical Comparative Law: Do We Need Statistical Evidence in Law in Order to Reduce
Complexity?, 13 CARDOZO J. INT'L & COMP. L. 521, 521 (2005) (the author refers to the practice of translating the
effects and the characteristics of law into numbers).
4 For an overview of the debate see Oliver Brand, Conceptual Comparisons: Towards a Coherent Methodology of
Comparative Legal Studies, 32 BROOK. J. INT'L L. 405 (2006). Cf also Mathias M. Siems, Legal Origins: Reconciling
Law &  (and) Finance and Comparative Law, 52 McGILL L. J. 55, 57 (2007) (The problem .... is how 'properly' to
engage in comparative law.).
5 This is a controversial point in itself. See JOHN HENRY MERRYMAN, THE LONELINESS OF THE COMPARATIVE LAWYER
456 et seq. (1999) (arguing that the law is mostly about non-measurable values).
6 For an exhaustive overview of the debate on incommensurability see H. Patrick Glenn, Are Legal Traditions
Incommensurable, 49 AM. J. COMP. L. 133 (2001).
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