the point of view of logic it normally means a certain kind of classification in which there is a division into two groups.These groups are comprehended as mutually exclusive and, thus, exhaustive groups.Yet, if one reads theoretical comparative law literature this dichotomy is normally not presented in an explicit manner. Instead, it tends to be invisibly interwoven in the epistemological and methodological texture of normative nature.3 In other words, scholars do not necessarily state clearly that their thinking is dichotomous rather this is something that one grasps as an underlying quintessential element of comparative law discourse concerning epistemology and methodology.The intellectual platform where this sort of understanding grows from is the idea according to which comparative law ought to be scientific in order for it to be genuine academic comparative law.4 The logic here goes something like this: the more scientific comparative law is, the better it turns out to be.And, vice versa: less scientific comparative law equals to poorer comparative law.The first step in this line of argumentation is to construct a basic division between theory and practice as W.J. Kamba does in the following passage: Clearly, this paradigmatic idea of being more theoretical i.e. “getting better equals being more scientific” is no stranger to other fields of comparative study either. For instance, such a closely related field as the comparative study of politics is also entertaining similar kinds of ideas according to which a comparative discipline must be scientific if it wants to be considered a legitimate comparative field of study at all.6 jaakko hu sa 107 3 Typically, thinking follows passages like these fromWalther Hug:“Studies which are not truly comparative…” (at 1027) or “comparative in a strict sense” (at 1069).Hug, “The History of Comparative Law”, 45 Harvard Law Review(1932) 1027-1070. 4 Jacques Vanderlinden (Comparer les droits, Kluwer/E. Story-Scientia, Diegem1995 at 428) put this underlying idea as following:“De cette science, l’analyse comparative est le point de départ obligé. Puis vient la synthèse comparative.A ce moment, la port s’ouvre sur la science du droit qui, sans la comparaison des droits, ne pourrait se concevoir.” 5 Kamba,“Comparative Law:ATheoretical Framework”, 23 International and Comparative Law Quarterly(1974) 485-519, at 518(attempts to provide a theoretical framework for the theoretically sound comparative study of law). 6 See, e.g., Mattei Dogan and Dominique Pelassy, How to Compare Nations – StrateWhat distinguishes a comparative lawyer from an ordinary lawyer is that the former has a good grounding in comparative theory which the latter has not.5
RkJQdWJsaXNoZXIy MjYyNDk=