oa Comparative and International Law Journal of Southern Africa - Major theoretical problems of modern comparative legal methodology (1): the nature and role of the tertium comparationis
|Article Title||Major theoretical problems of modern comparative legal methodology (1): the nature and role of the tertium comparationis|
|© Publisher:||Institute of Foreign and Comparative Law|
|Journal||Comparative and International Law Journal of Southern Africa|
|Affiliations||1 Centre for Human Rights Studies, University of the Orange Free State|
|Publication Date||Jul 1995|
|Pages||175 - 199|
|Keyword(s)||Comparative law, Comparative legal methodology, Positive legal phenomena and Tertium comparationis|
This article is the first in a trilogy dealing with three major theoretical problems confronting modem comparative legal methodology. The premise of the trilogy is that contrary to certain views, there are definite paradigmatic differences in approach to comparative law. These reflect the theoretical assumptions and points of departure subjacent to the use of the comparative method by modem exponents of the schools of thought in comparative law, and therefore, in legal science as such. Comparative legal thought is besieged by methodological relativism, or even 'anarchism'. There is an astonishing disregard, denial, or simply a total ignorance of the fact that methodologies are formulated in, determined by and to a large extent comprehensible only within, the ambits of the philosophical frameworks within which they are generated. These philosophical frameworks determine the use of concrete comparative methods or techniques in trans-theoretical or non-theoretical contexts in relation to the objects of investigation. This leads to the general , almost apologetic, reduction of those methods and techniques to the subjective preferences, interests and aims of individual comparatists.
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