methodology in law dissertation

Legal Dissertation: Research and Writing Guide

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About This Page

Choosing a topic can be one of the most challenging aspects of writing an extensive paper. This page has resources to help you find topics and inspiration, before you get started on the in-depth research process.

Related Guides

Citation and Writing Resources

Legal Research Tutorials

Secondary Sources for Legal Research

Methods of Finding Cases

Methods of Finding Statutes

Current Awareness and Alerting Resources

Compiling State Legislative Histories

Locating International and Foreign Law Journals

This guide contains resources to help students researching and writing a legal dissertation or other upper-level writing project. Some of the resources in this guide are directed at researching and writing in general, not specifically on legal topics, but the strategies and tips can still be applied.

The Law Library maintains a number of other guides on related skills and topics that may be of interest:

The Wells Library also maintains guides. A few that may be helpful for managing research can be found here:

Choosing a Topic

This video discusses tips and strategies for choosing a dissertation topic.

Note: this video is not specific to legal dissertation topics, but it may still be of interest as an overview generally.

The Bloomberg/BNA publication United States Law Week can be a helpful resource for tracking down the major legal stories of the day.  Log into Bloomberg Law, in the big search box, start typing United States Law Week and the title will appear in the drop down menu beneath the box. This publication provides coverage of top legal news stories, and in-depth "insight" features.

If you have a general idea of the area of law you wish to write about, check out the Practice Centers on Bloomberg. From the homepage, click the Browse link in the top left-hand corner. Then select Practice Centers and look for your area of law. Practice Centers are helpful because they gather cases, statutes, administrative proceedings, news, and more on the selected legal area.

Bloomberg has other news sources available as well. From the homepage, click the Browse link in the top left-hand corner. Then select News and Analysis, then select News or Analysis, and browse the available topics.

If you know what area of law you'd like to write about, you may find the Browse Topics feature in Lexis Advance helpful for narrowing down your topic. 

Log into Lexis Advance, click the Browse Topics tab, and select a topic.  If you don't see your topic listed, try using the provided search bar to see whether your topic is categorized as a sub-topic within this list. 

Once you click on a topic, a box pops up with several options.  If you click on Get Topic Document, you'll see results listed in a number of categories, including Cases, Legislation, and more.  The News and Legal News categories at the right end of the list may help you identify current developments of interest for your note.  Don't forget about the filtering options on the left that will allow you to search within your results, narrow your jurisdiction, and more.

Similar to Lexis Advance, Westlaw Edge has a Topics tab that may be helpful if you know what area of law you'd like to write about.

Log onto Westlaw Edge, and click on the Topics tab.  This time, you won't be able to search within this list, so if you're area is not listed, you should either run a regular search from the main search bar at the top or try out some of the topics listed under this tab - once you click on a topic, you can search within its contents.

What is great about the Topics in Westlaw Edge is the Practitioner Insights page you access by clicking on a topic.  This is an information portal that allows you quick access to cases, legislation, top news, and more on your selected topic.

In United States federal courts, a circuit split occurs whenever two or more circuit courts of appeals issue conflicting rulings on the same legal question. Circuit splits are ripe for legal analysis and commentary because they present a situation in which federal law is being applied in different ways in different parts of the country, even if the underlying litigants themselves are otherwise similarly situated. The Supreme Court also frequently accepts cases on appeal that involve these types of conflicted rulings from various sister circuits.

To find a circuit split on a topic of interest to you, try searching on Lexis and Westlaw using this method:

in the search box, enter the following: (circuit or court w/s split) AND [insert terms or phrases to narrow the search]

You can also browse for circuit splits on Bloomberg. On the Bloomberg homepage, in the "Law School Success" box, Circuit Splits Charts appear listed under Secondary Sources.

Other sources for circuit splits are American Law Reports (ALR) and American Jurisprudence (AmJur). These publications provide summaries of the law, point out circuit splits, and provide references for further research.

"Blawgs" or law-related blogs are often written by scholars or practitioners in the legal field.  Ordinarily covering current events and developments in law, these posts can provide inspiration for note topics.  To help you find blawgs on a specific topic, consider perusing the ABA's Blawg Directory or Justia's Blawg Search .

Research Methodology

Types of research methodologies.

There are different types of research methodologies. Methodology refers to the strategy employed in conducting research. The following methodologies are some of the most commonly used in legal and social science research.

Doctrinal legal research methodology, also called "black letter" methodology, focuses on the letter of the law rather than the law in action. Using this method, a researcher composes a descriptive and detailed analysis of legal rules found in primary sources (cases, statutes, or regulations). The purpose of this method is to gather, organize, and describe the law; provide commentary on the sources used; then, identify and describe the underlying theme or system and how each source of law is connected.

Doctrinal methodology is good for areas of law that are largely black letter law, such as contract or property law. Under this approach, the researcher conducts a critical, qualitative analysis of legal materials to support a hypothesis. The researcher must identify specific legal rules, then discuss the legal meaning of the rule, its underlying principles, and decision-making under the rule (whether cases interpreting the rule fit together in a coherent system or not). The researcher must also identify ambiguities and criticisms of the law, and offer solutions. Sources of data in doctrinal research include the rule itself, cases generated under the rule, legislative history where applicable, and commentaries and literature on the rule.

This approach is beneficial by providing a solid structure for crafting a thesis, organizing the paper, and enabling a thorough definition and explanation of the rule. The drawbacks of this approach are that it may be too formalistic, and may lead to oversimplifying the legal doctrine.

Comparative

Comparative legal research methodology involves critical analysis of different bodies of law to examine how the outcome of a legal issue could be different under each set of laws. Comparisons could be made between different jurisdictions, such as comparing analysis of a legal issue under American law and the laws of another country, or researchers may conduct historical comparisons.

When using a comparative approach be sure to define the reasons for choosing this approach, and identify the benefits of comparing laws from different jurisdictions or time periods, such as finding common ground or determining best practices and solutions. The comparative method can be used by a researcher to better understand their home jurisdiction by analyzing how other jurisdictions handle the same issue. This method can also be used as a critical analytical tool to distinguish particular features of a law. The drawback of this method is that it can be difficult to find material from other jurisdictions. Also, researchers should be sure that the comparisons are relevant to the thesis and not just used for description.

This type of research uses data analysis to study legal systems. A detailed guide on empirical methods can be found here . The process of empirical research involves four steps: design the project, collect and code the data, analyze the data, determine best method of presenting the results. The first step, designing the project, is when researchers define their hypothesis and concepts in concrete terms that can be observed. Next, researchers must collect and code the data by determining the possible sources of information and available collection methods, and then putting the data into a format that can be analyzed. When researchers analyze the data, they are comparing the data to their hypothesis. If the overlap between the two is significant, then their hypothesis is confirmed, but if there is little to no overlap, then their hypothesis is incorrect. Analysis involves summarizing the data and drawing inferences. There are two types of statistical inference in empirical research, descriptive and causal. Descriptive inference is close to summary, but the researcher uses the known data from the sample to draw conclusions about the whole population. Causal inference is the difference between two descriptive inferences.

Two main types of empirical legal research are qualitative and quantitative.

Quantitative, or numerical, empirical legal research involves taking information about cases and courts, translating that information into numbers, and then analyzing those numbers with statistical tools.

Qualitative, or non-numerical, empirical legal research involves extracting  information from the text of court documents, then interpreting and organizing the text into categories, and using that information to identify patterns.

Drafting The Methodology Section

This is the part of your paper that describes the research methodology, or methodologies if you used more than one. This section will contain a detailed description of how the research was conducted and why it was conducted in that way. First, draft an outline of what you must include in this section and gather the information needed.

Generally, a methodology section will contain the following:

• Statement of research objectives
• Reasons for the research methodology used
• Description and rationale of the data collection tools, sampling techniques, and data sources used, including a description of how the data collection tools were administered
• Discussion of the limitations
• Discussion of the data analysis tools used

Be sure that you have clearly defined the reasoning behind the chosen methodology and sources.

• Legal Reasoning, Research, and Writing for International Graduate Students Nadia E. Nedzel Aspen (2004) A guide to American legal research and the federal system, written for international students. Includes information on the research process, and tips for writing. Located in the Law Library, 3rd Floor: KF 240 .N43 2004.
• Methodologies of Legal Research: Which Kind of Method for What Kind of Discipline? Mark van Hoecke Oxford (2013) This book examines different methods of legal research including doctrinal, comparative, and interdisciplinary. Located at Lilly Law Library, Indianapolis, 2nd Floor: K 235 .M476 2013. IU students may request item via IUCAT.
• An Introduction to Empirical Legal Research Lee Epstein and Andrew D. Martin Oxford University Press (2014) This book includes information on designing research, collecting and coding data, analyzing data, and drafting the final paper. Located at Lilly Law Library, Indianapolis, 2nd Floor: K 85 .E678 2014. IU students may request item via IUCAT.
• Emplirical Legal Studies Blog The ELS blog was created by several law professors, and focuses on using empirical methods in legal research, theory, and scholarship. Search or browse the blog to find entries on methodology, data sources, software, and other tips and techniques.

Literature Review

The literature review provides an examination of existing pieces of research, and serves as a foundation for further research. It allows the researcher to critically evaluate existing scholarship and research practices, and puts the new thesis in context. When conducting a literature review, one should consider the following: who are the leading scholars in the subject area; what has been published on the subject; what factors or subtopics have these scholars identified as important for further examination; what research methods have others used; what were the pros and cons of using those methods; what other theories have been explored.

The literature review should include a description of coverage. The researcher should describe what material was selected and why, and how those selections are relevant to the thesis. Discuss what has been written on the topic and where the thesis fits in the context of existing scholarship. The researcher should evaluate the sources and methodologies used by other researchers, and describe how the thesis different.

The following video gives an overview of conducting a literature review.

Note: this video is not specific to legal literature, however it may be helpful as a general overview.

Not sure where to start? Here are a few suggestions for digging into sources once you have selected a topic.

Research Guides

Research guides are discovery tools, or gateways of information. They pull together lists of sources on a topic. Some guides even offer brief overviews and additional research steps specifically for that topic. Many law libraries offer guides on a variety of subjects. You can locate guides by visiting library websites, such as this Library's site , the Law Library of Congress , or other schools like Georgetown . Some organizations also compile research guides, such as the American Society of International Law . Utilizing a research guide on your topic to generate an introductory source list can save you valuable time.

Secondary Sources

It is often a good idea to begin research with secondary sources. These resources summarize, explain, and analyze the law. They also provide references to primary sources and other secondary sources. This saves you time and effort, and can help you quickly identify major themes under your topic and help you place your thesis in context.

Encyclopedias provide broad coverage of all areas of the law, but do not go in-depth on narrow topics, or discuss differences by jurisdiction, or  include all of the pertinent cases. American Jurisprudence ( AmJur ) and Corpus Juris Secundum ( CJS ) have nationwide coverage, while the Indiana Law Encyclopedia focuses on Indiana state law. A number of other states also have their own state-specific encyclopedias.

American Law Reports ( ALR ) are annotations that synopsize various cases on narrow legal topics. Each annotation covers a different topic, and provides a leading or typical case on the topic, plus cases from different jurisdictions that follow different rules, or cases where different facts applying the same rule led to different outcomes. The annotations also refer to other secondary sources.  

Legal periodicals include several different types of publications such as law reviews from academic institutions or organizations, bar journals, and commercial journals/newspapers/newsletters. Legal periodicals feature articles that describe the current state of the law and often explore underlying policies. They also critique laws, court decisions, and policies, and often advocate for changes. Articles also discuss emerging issues and notify the profession of new developments. Law reviews can be useful for in-depth coverage on narrow topics, and references to primary and other secondary sources. However, content can become outdated and researchers must be mindful of biases in articles. 

Treatises/Hornbooks/Practice Guides are a type of secondary source that provides comprehensive coverage of a legal subject. It could be broad, such as a treatise covering all of contract law, or very narrow such as a treatise focused only on search and seizure cases. These sources are good when you have some general background on the topic, but you need more in-depth coverage of the legal rules and policies. Treatises are generally well organized, and provide you with finding aids (index, table of contents, etc.) and extensive footnotes or endnotes that will lead you to primary sources like cases, statutes, and regulations. They may also include appendices with supporting material like forms. However, treatises may not be updated as frequently as other sources and may not cover your specific issue or jurisdiction.

Citation and Writing Style

• Legal Writing in Plain English Bryan A. Garner University of Chicago Press, 2001. Call # KF 250 .G373 2001 Location: Law Library, 3rd Floor Provides lawyers, judges, paralegals, law students, and legal scholars with sound advice and practical tools for improving their written work. The leading guide to clear writing in the field, this book offers valuable insights into the writing process: how to organize ideas, create and refine prose, and improve editing skills. This guide uses real-life writing samples that Garner has gathered through decades of teaching experience. Includes sets of basic, intermediate, and advanced exercises in each section.
• The Elements of Legal Style Bryan A. Garner Oxford University Press, 2002. Call # KF 250 .G37 2002 Location: Law Library, 1st Floor, Reference This book explains the full range of what legal writers need to know: mechanics, word choice, structure, and rhetoric, as well as all the special conventions that legal writers should follow in using headings, defined terms, quotations, and many other devices. Garner also provides examples from highly regarded legal writers, including Oliver Wendell Holmes, Clarence Darrow, Frank Easterbrook, and Antonin Scalia.
• Grammarly Blog Blog featuring helpful information about quirks of the English language, for example when to use "affect" or "effect" and other tips. Use the search feature to locate an article relevant to your grammar query.
• Plain English for Lawyers Richard C. Wydick Carolina Academic Press, 2005. Call # KF 250 .W9 2005 Location: Law Library, 3rd Floor Award-winning book that contains guidance to improve the writing of lawyers and law students and to promote the modern trend toward a clear, plain style of legal writing. Includes exercises at the end of each chapter.
• The Chicago Manual of Style University of Chicago Press, 2010. Call # Z 253 .U69 2010 Location: Law Library, 2nd Floor While not addressing legal writing specifically, The Chicago Manual of Style is one of the most widely used and respected style guides in the United States. It focuses on American English and deals with aspects of editorial practice, including grammar and usage, as well as document preparation and formatting.
• The Chicago Manual of Style (Online) Bryan A. Garner and William S. Strong The University of Chicago Press, 2017. Online edition: use the link above to view record in IUCAT, then click the Access link (for IU students only).
• The Bluebook Compiled by the editors of the Columbia Law Review, the Harvard Law Review, the University of Pennsylvania Law Review, and the Yale Law Journal. Harvard Law Review Association, 2015. Call # KF245 .B58 2015 Location: Law Library, 1st Floor, Circulation Desk The Bluebook: A Uniform System of Citation is a style guide that prescribes the most widely used legal citation system in the United States. The Bluebook is taught and used at a majority of U.S. law schools, law reviews and journals, and used in a majority of U.S. federal courts.
• User's Guide to the Bluebook Alan L. Dworsky William S. Hein & Co., Inc., 2015. Call # KF 245 .D853 2015 Location: Law Library, Circulation Desk "This User's Guide is written for practitioners (law students, law clerks, lawyers, legal secretaries and paralegals), and is designed to make the task of mastering citation form as easy and painless as possible. To help alleviate the obstacles faced when using proper citation form, this text is set up as a how-to manual with a step-by-step approach to learning the basic skills of citation and includes the numbers of the relevant Bluebook rules under most chapter subheadings for easy reference when more information is needed"--Provided by the publisher.
• Legal Citation in a Nutshell Larry L. Teply West Academic Publishing, 2016. Call # KF 245 .T47 2016 Location: Law Library, 1st Floor, Circulation Desk This book is designed to ease the task of learning legal citation. It initially focuses on conventions that underlie all accepted forms and systems of legal citation. Building on that understanding and an explanation of the “process” of using citations in legal writing, the book then discusses and illustrates the basic rules.
• Introduction to Basic Legal Citation (Online) Peter W. Martin Cornell Legal Information Institute, 2017. Free online resource. Includes a thorough review of the relevant rules of appellate practice of federal and state courts. It takes account of the latest edition of The Bluebook, published in 2015, and provides a correlation table between this free online citation guide and the Bluebook.
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Law dissertations : a step-by-step guide.

Lammasniemi, Laura (2021) Law dissertations : a step-by-step guide. London: Routledge. ISBN 9780367568771

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Law Dissertations: A Step-by-Step Guide provides you with all the guidance and information you need to complete and succeed in your LLB, LLM or law-related dissertation. Written in a simple, clear format and with plenty of tools to help you to put the theory into practice, Laura Lammasniemi will show you how to make writing your law dissertation easy, without compromising intellectual rigour.

As well as explaining the process of research and outlining the various legal methodologies, the book also provides practical, step-by-step guidance on how to formulate a proposal, research plan, and literature review. Unlike other law research skills books, it includes a section on empirical research methodology and ethics for the benefit of students who are studying for a law-related degree.

Packed full of exercises, worked examples and tools for self-evaluation, this book is sure to become your essential guide, supporting you on every step of your journey in writing your law dissertation.

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Research Methodology

This page provides a list of books and e-books about research methodologies that are employed by graduate students in law.

The phrase "research methodology" in this context refers to the "methods and rules that are used to analyze a particular field, or a particular procedure or set of procedures" (Lammasniemi, 2022). Research methodologies used by graduate students in law include (but are not limited to) doctrinal research, comparative law, socio-legal research, and theoretical research.

Note: "research methodology" is NOT the same as "how to do legal research." If you are looking for guidance on how to conduct legal research in a particular jurisdiction, please refer to this guide's chapters on Canadian Law and Foreign Law.

Guides on Research Methodology

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• Last Updated: May 13, 2024 9:39 AM
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BJu Tijdschriften

• Abonnementen
• Law and Method
• Aflevering 12, 2015
• Methodology of Comparative Legal Research
• Aflevering 12 2015
• Artikel Methodology of Comparative Legal Research
• Artikel Dworkin’s Constructive Interpretation as a Method of Legal Research.
• Artikel Lessen geleerd: onderwerp, object, en theoretisch kader van rechtswetenschappelijk onderzoek

Citeerwijze van dit artikel: Mark Van Hoecke, ‘Methodology of Comparative Legal Research’, 2015, oktober-december, DOI: 10.5553/REM/.000010

Dit artikel wordt geciteerd in

Researchers get easily lost when embarking on comparative legal research. The main reason being that there is no agreement on the kind of methodology to be followed, nor even on the methodologies that could be followed. 1 x This chaotic and unscientific situation has been well described by Esin Örücü: “There are comparative lawyers who see comparative law as a science with its own separate sphere. Others call comparative law merely a method of study and research or even a technique. Some regard it both as a comparative method and a comparative science of law, or see in comparative law more than one of these aspects. It is immediately obvious that those who see comparative law as a method only do not tell us what that method is, leaving this issue unanswered or very vaguely covered, and those who think or feel that comparative law must be more than a mere method do not seem to agree on what this subject-matter is.” (Örücü 2007, p. 62) Moreover, almost everything that was more or less established in the area of comparative law over the last century has been increasingly criticized during the last few decades: the concept of ‘legal family’, the possibility of comparison itself, the object of comparison, etc. On the other hand, comparing domestic law with the way the same area has been regulated in one or more countries has become almost compulsory in doctrinal legal research. Also in legal practice, globalization and most notably Europeanization involve comparative research. How should a comparative researcher cope with this apparent paradox?

In this paper, an attempt is made to work out a methodology for comparative legal research, which goes beyond the ‘functional method’ or methodological scepticism.The starting point is the idea that we need a ‘toolbox’, not a fixed methodological road map, and that a lot of published, but largely unnoticed, research outside rule and case oriented comparative law offers varying approaches, which could usefully be applied in comparative research. Basically, it is the aim of the research and the research question that will determine which methods could be useful. 2 x In the same sense: Adams & Griffiths 2012, p. 279-301; Örücü 2006, p. 450-451. Moreover, different methods may be combined, as they are complementary and not mutually exclusive. This paper focuses on scholarly comparative legal research, not on the use of foreign law by legislators or courts, but, of course, the methodological questions and answers will largely overlap.  

• 1 Why compare?

At the end of the nineteenth century and early twentieth century, in France, Raymond Saleilles and others saw comparative law mainly as an instrument for improving domestic law and legal doctrine, as a way to renovating the fossilized approach of the still dominating Exegetic School to the Civil Code and its interpretation (Saleilles 1911, p. 22). 3 x See also the debate in the US on citing or not foreign case law, which in its turn is located within the discussion between ‘originalists’ (following the historical meaning of legal texts) and ‘evolutionalists’ (wanting to adapt the text to changed circumstances) (Reed 2008, p. 253-273). By the end of the twentieth century, many legal scholars in Europe considered comparative law to be the necessary instrument for a (desirable) harmonization of law within the EU. Hence, according to the circumstances, there may be different aims and diverging reasons for comparing legal systems.

In a general way, Patrick Glenn has answered this question under the heading ‘Aims of Comparative Law’ . 4 x In the Elgar Encyclopedia of Comparative Law (Glenn 2006). Compare the ‘purposes of comparative law research’ as listed by Esin Örücü (2007, p. 53-56). He lists (a) comparative law as an instrument of learning and knowledge 5 x Compare: ‘Comparative law is like other sciences in that its aim must be the acquisition of knowledge. Like other branches of legal science, it seeks knowledge of law’ (Sacco 1991). Sacco is also referring to Zweigert and Kötz, who in their Introduction to Comparative Law use a similar wording (he refers to the pages 16-17 of the second edition of the German version of 1984). (information on the law elsewhere and a better understanding thereof), (b) comparative law as an instrument of evolutionary and taxonomic science (common evolutions, diachronic changes, legal families), (c) contributing to one’s own legal system (understanding it better, including the resistance of its traditions, improving it, using it as a means for interpreting the constitution), and (d) harmonization of law. However, Glenn strongly criticizes much of the ideology that underlies traditional comparative law and largely still does today. There is the constructivist belief in the use of foreign law for one’s own, otherwise nicely protected, national legal system, or in harmonizing law being just a technical matter, or in taxonomies of coherent ‘legal families’. There is also a lot of Western imperialism in what William Twining has called the ‘Country and Western approach’ of comparative law (Twining 2007, p. 69-89). Nevertheless, even in a more open, pluralist and less constructivist comparative research, the mentioned aims are still largely valid, Glenn concludes.

In concrete comparative research projects, it is the aim of the research and the research questions that will imply some form of comparative law (or not). If the aim of the research is making some part of the domestic law more coherent one may well do without any external comparison. If the aim is to harmonize the law, e.g., within the EU, comparing the legal systems involved is already implied by this aim, but also the approach to be followed is partly determined by it, as the focus will be on the commonalities, on the common core of the compared legal systems and on the possible ways of erasing differences. When one tries to improve one’s own legal system, be it as a legislator or as a scholar, it has become obvious to look at the other side of the borders. However, importing rules and solutions from abroad may not work because of a difference in context. Hence, a more thorough contextual approach may be required. One may also want to inquire to what extent a legal evolution in one’s own country finds parallel developments in other countries. A paramount example is the developments in family law, mainly in Europe, over the last half century (see e.g., Antokolskaja 2007; Boele-Woelki, Dethloff & Gephart 2014). When comparing official state law in African countries with local customary law, one will notice that they show a tension between tradition and modernity, between Western law only followed by an elite and African law as the large majority of the population perceive it. Hence, an anthropological approach that puts the law in context will be necessary for explaining this tension, for understanding it and for finding solutions for it. If one’s research question would be whether the position of the notary public in some continental European country could be abolished and replaced by a civil officer or by a practising lawyer (advocate), it seems rather obvious to have a look at the common-law countries where such a specific profession doesn’t exist.

All scholarly research implies comparisons. Scholarly legal research often requires comparing one’s own legal system to another one. Here, we will focus on comparing national legal systems, as this is the most common geographical level of comparison.

• 2 Choice of legal systems to be compared

Comparative research is still mainly about comparing national legal systems, even if different forms of globalization, such as Europeanization, and an increasing recognition of non-state law, such as customary law, religious law or unofficial law-making by international companies are challenging the very concept of ‘legal system’. Here, we are not entering into that discussion (Van Hoecke 2014, p. 43-57). In practice, when choosing national legal systems to compare with, most (individual) researchers will make a choice on the basis of their knowledge of languages, which explains why most comparative research in the Anglo-Saxon world is focusing on comparing common-law countries that still use English as their (main) official language. 6 x See eg: Flanagan and Ahern 2011. Of course, such research has its value and for the purpose of this article (judges citing foreign law as a source of persuasive authority) it even makes sense to limit the research to the countries involved, as in many countries supreme courts will never cite any persuasive authority (even if they may have used it) but only the law they apply. However, the results of a comparison among Common Law or English language countries may only create a false impression of universality. In the mentioned article the survey covers courts from Britain, the Caribbean, Australia, South Africa, Ireland, India, Israel, Canada, New Zealand and the United States, in other words, countries from all continents. This makes comparative research in most areas of the law quite easy, as the whole conceptual framework and the older history of the common law is also the same for all legal systems compared. However, such research may be useful at the informative level, for businessmen for instance, but is not entirely useful in the context of broader scientific research. Increasingly, some translations of legal texts in English are available for most countries all over the world. However, they tend to cover only legislation and do not always follow changes made to the law, so that they may rapidly be outdated. The same goes for general introductions in English, to the law or a specific area of it, of individual countries. It may be desirable to use such information in some cases, for instance as a confirmation of what has been found elsewhere, but for a thorough comparative research a good reading knowledge of the local language 7 x In case of indigenous or other customary laws with an oral tradition it will, of course, have to be a sufficient access to the spoken language. is an absolute requirement. Even for a limited use of English language publications on the law of a country of which the researcher cannot read the local language, it is highly recommended to check whether one’s own interpretation is correct and whether there have been any recent changes in that law, by contacting a local scholar who speaks English or another language the researcher masters. For this, a well-elaborated network of colleagues in the same area of law is very valuable. Even when one’s knowledge of languages will be the prime reason for choosing or eliminating some country, the researcher should be able to give good reasons why her choice is acceptable from a scholarly point of view. For instance, when studying the division between public law and private law, it makes sense to focus on France and on the UK, as they may well have the most opposed views on the matter. This may be used as a strong argument, so that the researcher may leave aside her initial problem that French and English may be the only two languages she knows.

For larger projects, an international team, that masters together all required languages, may be the solution, on the condition that the internal communication within the group is sufficiently intense and qualitatively good. Every member of the team should be able to detect the relevant commonalities and differences between the studied legal systems and their contexts, and, moreover, be able to explain them clearly to the other members of the team. In the case of such teams the choice of legal systems to be compared may be based on more relevant criteria than the accidental (lack of) knowledge of languages of individual researchers. However, one has to be aware that lack of sufficient understanding of foreign legal systems may arise from an imperfect communication within the team.

It is also risky to involve legal systems with legal cultures one is not familiar with, at least to some extent, at the start of the research project. Assume that a research team wants to set up a worldwide research project on divorce. For this, they draft a lengthy questionnaire with all kinds of questions on the grounds for divorce, on the procedure and on the legal consequences of each type of divorce. After this, they contact their network for answering those questions. However, the response will be largely biased if they based the questionnaire on Western law only. Indeed, it will not take into account the ‘repudiation’ of a wife under Islamic law, which sometimes has been equated to ‘divorce by mutual consent’ in Europe. It will not take into account traditional marriage in African countries, where legislation only regulates ‘official’ (and monogamous) marriage, even if traditional marriage, concluded according to customary law, is accepted. This customary marriage largely doesn’t include the concept of divorce, nor is there a need to do so in view of the (unlimited) polygamy set-up. This means that, before setting up a large comparative research project of this kind, one has to define different levels of comparison, on the basis of such elements and their correct understanding. One cannot study divorce inter-culturally without a broader understanding of marriage, of the role of families, of the general attitude to divorce in each of the compared societies.

The wording of the research question will be the main criterion for the choice of legal systems to be compared. If, for instance, one wants to inquire to what extent the law on contracts for renting houses or flats could be harmonized within the European Union, the law of the 28 member states will have to be studied. However, if the working hypothesis would be that such harmonization is not possible, it may suffice to study two legal systems, such as the French and the English one, if one may prove that harmonization between those two legal systems would be impossible and, hence, any harmonization within the whole of the EU. If one would like to study the role of the king or queen in kingdoms worldwide, or the way federal states are organized, one should in principle involve all legal systems that are relevant for this topic. In practice, however, a much more limited selection of countries may still be quite relevant and, hence, suffice. Comparing, for instance, just the US and Germany may allow to go deeper into the historical developments which explain the current situation and into the way these federal structures work in practice. If one wants to challenge the concept of ‘federal state’ itself, a comparison with the structure of the European Union may look quite attractive. Another approach may be to look first at the reasons for a more decentralized organization of a country: historical coincidence, making the practical organization of a large state feasible, living together of various communities with different languages, religions, and/or cultures within the same state, etc. If one wants to inquire how, for instance a federal structure, or some specific parts of it, has contributed to a peaceful living together of people within the same state, it may be more relevant to compare, for instance, Belgium, Canada, and Nigeria than the US and Germany.

• 3 What has to be compared?

In the nineteenth century, associations and journals were founded on ‘comparative legislation’. At that time, there was a focus on comparing rules in different societies. 8 x The idea was also to find the ‘ideal legislation’. It was an approach to comparative law based on natural law: ‘…consciously or unconsciously, it postulates natural law of the old rationalist type. It tacitly assumes that for every detail of every legislative problem there is one right universal rule, which the lawmaker is seeking to discover and to formulate. (…) The expert on comparative legislation combines the information afforded by the legislation of the world on any point you like and pulls out the one right rule’ (Pound 1936, p. 57). Later on, more attention was paid to judicial decisions and the way legal problems were solved in practice. 9 x In France, in the early 20 th century, most notably Raymond Saleilles and Edouard Lambert criticized the work of the Société de legislation comparée , which simply translated foreign legislation without taking into account how it worked in practice. These authors assumed that ‘real life’ was to be found in case law (Saleilles 1891, p. 219). Lambert was even opposed to using social sciences, which were at that time not sufficiently developed to be able to offer enough precise and useful information for comparative law (Lambert 1900, p. 237). Meanwhile, many authors on comparative law emphasize also the importance of taking into account the socio-economic and historical context of the law when carrying out comparative legal research. Where has the comparative researcher to look for in foreign legal systems: legislation, and/or case law and/or their entire context? Relevant legislation and (published) case law may be found relatively easily. In the first place, in doctrinal books and articles (much less in Italy, however, where legislation is often discussed without direct references to case law) and, for more recent months and years, through electronic databases. But what to do with the context of the law? Occasionally, some explanations may be found in doctrinal legal writings, but until now this has been rather exceptional. Sometimes it was explained widely in the international press, such as the financial crisis as the context and explanation for some domestic and European changes in regulations of the financial sector. Sometimes, the researcher may discover historical, sociological, and/or economic literature on her topic for a country included in the comparison, but that is not obvious either. Whereas some limited social science research may be feasible within the context of one’s own legal system, for foreign countries this will, as a rule, be excluded within the frame of research in law carried out individually. Much will depend on the focus of one’s research and on the available sources. A good balance between both will guarantee the feasibility of the research design. An overly ambitious law-in-context approach for a topic where there are insufficient available sources will make the research plan unrealistic within the context of comparative legal scholarship.

In short, comparing only legislation is risky when there is no information available on how it works in practice, and such a limited comparison is only acceptable for countries which are not at the core of one’s comparative research. For instance, when comparing one’s domestic law with German law, the researcher may add that the legislation is the same in Switzerland and/or in Austria, without making a thorough analysis of those legal systems in relation to this point. Comparing case law (and legislation) will require some knowledge of the historical and socio-economic context that transpires from the available sources. When comparing neighbouring countries, the researcher may have a general idea of historical and/or socio-economic similarities and differences. For differences, some better insight into that context will be required. Also, focusing on practical solutions to legal problems should not dissociate the legal solutions from their doctrinal context, as some solutions may be accidentally similar, which may hide more important differences at the level of the concepts used and the systemic building of that area of the law. Fully comparing law-in-context within individual research will only be possible if one is lucky to find sufficient relevant sources and literature for each of the legal systems to be compared. Otherwise, team research will be required, preferably with an interdisciplinary team. Again, some rough understanding of differences and similarities between the legal systems, and of the relevant context for explaining them, will be a prerequisite for setting up the research project and selecting not only the legal systems to be compared, but also the disciplines relevant for the context research. When comparing banking law, for instance, one may assume that economics is most relevant for explaining similarities and differences, but maybe history and/or psychology would eventually appear to be even more relevant for the specific research question. With inter-cultural comparisons, apparent similarity of (imported) legislation, e.g., on the equality of men and women, may hide a completely different reality. Only (legal) anthropological research may reveal and adequately explain this. In all cases, however, comparison should never stop at the level of legislation, and even not at the level of case law, as the social reality may be more different than similar rules suggest (and sometimes more similar than different rules would suggest). Rules may exist on paper, but are not applied in practice. Absence of case law on the matter may have diverging explanations: (a) everybody follows the law; (b) the matter has been settled for a long time (e.g., unchanged legislation as to real estate for many decades, if not centuries) and, hence, there are nowadays few disputes that end up in court and/or the judicial decisions are not interesting from a doctrinal point of view and are, therefore, not published; (c) victims of illegal practices don’t dare to go to court because of strong social pressure (e.g., in cases of rape); (d) problems and conflicts are (almost) always solved outside the law or outside its institutions; etc. In all those cases, lack of sociological inquiries may lead to a completely distorted view on the law in a foreign country. Lawyers generally will have a basic understanding on these points as to their own law, but mostly not, or at least not to the same extent, as to foreign legal systems.

• 4 How does one compare?

Comparative law has often been criticized for not following any method when carrying out comparative research. Indeed, comparatists often act like tourists who visit a foreign city and notice that things are different, be it to some extent similar too, compared to their home-town. After their visit they will be able to describe what they have seen to their family and friends at home, but they will lack a more general framework used, for instance, by specialists in architecture or art historians to describe the same sights in a (very) different way. Comparative researchers should become professionals rather than be tourists. However, the theoretical framework historians and architects may dispose of is still largely lacking for comparative law. Whereas legal scholars have been educated with a firm doctrinal framework for their own legal system, they lack such an overarching framework for comparative research. Sometimes ‘comparing’ is considered to be a ‘method’ in its own right and called ‘the comparative method’ without further explanation or concrete guidelines. The only ‘method’ proposed in comparative literature, which goes one step further, is the so-called ‘functional method’. It offers one concrete guideline in that it suggests to focus on (common) legal problems and legal solutions in the compared legal systems, rather than on the (diverging) rules and doctrinal frameworks. However, some elements for other comparative methods may be found in the literature, mainly in the area of legal theory. On the basis of these writings, we may distinguish six different methods for comparative research: the functional method, the structural method, the analytical method, the law-in-context method, the historical method and the common-core method. Probably they constitute together the whole toolbox for comparative research.

Following Berthelot, Geoffrey Samuel has distinguished six different ‘schemes of intelligibility’: causal, functional, structural, hermeneutical, actional and dialectical. They are, according to Berthelot and Samuel, to be identified as separate epistemological readings in that not one of the six can be reduced, in terms of its fundamental logical relations, to one of the others. 10 x Samuel 2014, p. 81, with references to Berthelot, 2001, p. 484, and Berthelot 1996, p. 81. Hereafter, we will discuss the functional method and the structural method in the context of comparative research, next to the analytical method, the historical method, the law-in-context method and the common-core method. The latter methods are not mentioned among the six distinct schemes of intelligibility in the context of the social sciences in general, but we may see them as combinations of two or more of them. Causal understanding, for instance, has a pivotal role to play within the law-in-context approach and the historical method. Hermeneutics, in its turn, is vital to all comparative methods.

The different ‘methods’ discussed hereafter are not mutually exclusive. It is even possible to combine all of them in one and the same research. The name of the method points to the specific feature of that approach, without excluding its combination with another method.

4.1 The functional method

‘In short, “the functional method” is a triple misnomer. First, there is not one (“the”) functional method, but many. Second, not all allegedly functional methods are “functional” at all. Third, some projects claiming adherence to it do not even follow any recognizable “method”’ (Michaels 2006, p. 342). 12 x Jaakko Husa (2013) shows how ‘functionalism’ in comparative law has little to do with ‘functionalism’ in other disciplines.

Indeed, ‘functionalism’ is used in quite diverging meanings, serving rather different goals: understanding law, comparing ( tertium comparationis ), focusing on similarities ( praesumptio similitudinis ), building a system (of ‘legal families’, for instance), determining the ‘better law’, unifying law, critical appraisal of the legal orders (Michaels 2006, p. 364-380). This variety of ‘functional methods’ points to the importance of the research aim and research question for choosing an appropriate comparative method. Basically, what the researcher will compare and how, largely depends on the research question(s) and research interest. The method followed should serve that goal. The idea behind functionalism is to look at the way practical problems of solving conflicts of interest are dealt with in different societies according to different legal systems. This allows us to perceive those problems (largely) independently from the doctrinal framework of each of the compared legal systems (Husa 2011, p. 221-222). Many societal problems, such as accidents, family problems, theft, murder, quarrels between neighbours, etc., are to be found in most, if not all, societies. All societies have some form of ‘law’ which helps to solve those problems. Legal concept, legal rules and legal procedures may sometimes rather diverge, but still the solutions given to some problems may be similar or even identical. In other words, the legal solution may be the same, notwithstanding the diverging roads used to reach that solution. The functional method is looking for such ‘functional equivalents’ at the level of the solutions. If, in view of the research question, such as ‘Which solution is given in countries A, B and C to legal problem P?’ or ‘Which institution in system B performs an equivalent function to the one under survey in system A?’ (Örücü 2006, p. 443). 13 x She calls this the ‘functional-institutional approach’ and the previous one the ‘problem-solving approach’, but, of course, they are just the two sides of one and the same coin. only the result counts and if this legal solution is the same in the compared countries, then the researcher may conclude that the law is ‘the same’ in those countries. However, if the focus is on the way in which the legal rules and doctrinal constructions of the respective legal systems solve that legal problem, the functional method is not very relevant. Moreover, in some cases similar or identical rules in two compared legal systems lead to diverging results. 14 x Typical examples may be found in the countries, such as Belgium, which kept or took over the Code Napoléon after Napoleon’s defeat in 1815 but interpreted unchanged articles of that code in a different, and sometimes even opposed, way, compared to France. This is a kind of functional ‘dis-equivalence’. Here, focusing on the rules only would not be very useful.

In the same chapter, Ralf Michaels rightly points to the conclusion that ‘at least three main current approaches other than functionalism remain: comparative legal history, the study of legal transplants, and the comparative study of legal cultures’ (Michaels 2006, p. 341). However, the first one has a strong historical dimension, the latter an anthropological one, and the study of legal transplants a sociological one, as it studies how rules and concepts may (not) work in a different socio-economic environment (apart from a different doctrinal environment). Functionalism, for its part, is often used with the (implicit) assumption that problems are the same everywhere (theft, car accident, failure of executing a contract, etc.). This may be true in many cases in countries with a similar historical and socio-economic background (the Western European countries, for instance), but even then not in all cases and certainly not in all countries and legal cultures worldwide. Moreover, different doctrinal structures may ‘create’ different problems, complicate or facilitate them being solved. Hence, proponents of the functional method try to limit the comparison to ‘universal facts’, like two cars hitting each other at a crossroad, leaving aside whatever is determined by the local law or legal culture (See on this: Graziadei 2003, p. 108ff). However, in this way not much may be left for a functional comparison. Indeed, functionalism cannot isolate the solutions to practical problems from their doctrinal legal framework (including procedural rules), and it cannot separate those problems from their socio-economic and historical context.

In its most common understanding, the functional method doesn’t compare primarily rules, but solutions to practical problems with conflicting interests. It is true that there are relatively universal human attitudes to certain situations, such as taking care of children, respecting property rights, executing contractual obligations, compensating in one way or another damages caused by one’s wrongful conduct, and so on. Hence, practical solutions to similar problems in those areas in different legal systems will often more converge than the legal roads used to reach those results. Canon law, for instance, doesn’t encompass divorce. Nowadays, all countries with a Christian tradition offer the possibility of divorce in their legislation. In practice however, the Roman-Catholic Church is quite flexible as to declaring a marriage void, whereas this is much more difficult in the state legal systems. There are still important differences between state laws and canon law, but the practical answers to problematic marriages diverge less than the differences in divorce legislation would suggest. As a result, the functional method helps the researcher to broaden the scope of her research. Indeed, similar results are often reached following different roads, or too harsh consequences of too strict rules are attenuated by other means. By focusing on practical problems and their solutions, one may discover those different legal roads. Actually, law is a way to structure reality. Different cultures may use different ways to structure similar realities, but partly they also create different realities. Hence, the functional method has to be complemented by other methods.

What makes functionalism easier than the other ‘methods’ listed, is that it requires a less thorough analysis of the broader cultural context, if any, and, hence, is more accessible to the average legal researcher. It reduces the complexity of comparing legal systems in a very attractive way for most researchers The price paid for it is that the explanatory force of research using the functional method is more reduced and that more creative work can be done, e.g., in comparative legal history, or using the law-in-context method.

4.2 The structural method

‘This is a grille de lecture whereby the observer focuses on the structures hidden within the phenomenon being observed. These structures can be loose in the way they interrelate (for example plot structures in literature) or they can be a collection of elements that form a system, this latter notion being characterised by the creative interaction of the elements within a totality that can be identified as having frontiers and thus being independent’ (Samuel 2014, p. 81-82).

When elaborating classifications of ‘legal families’, a structural approach has been underlying them. Differences between legal systems at the level of concrete rules become irrelevant if they share enough structural commonalities, such as Roman law principles and concepts in private law, to classify them as members of the same ‘legal family’, as opposed to other legal systems and families which do not share those commonalities. Of course, the selection of the most relevant criteria for determining ‘similar structures’ partly determines the outcome.

Example : assume one wants to compare land law worldwide and to try to classify them into ‘legal families’. The obvious starting point will be to follow the traditional distinction between the ‘Anglo-Saxon’ and the ‘Romano-Germanic’ legal families. However, one may prefer to start from the distinction between public or rather private law governing the matter: in the so-called ‘socialist’ or ‘communist’ regimes in Eastern Europe during several decades in the twentieth century disposing of means of production (ownership) was a matter of public law, whereas in most other countries it was a matter of private law (mainly ownership or rent). From another point of view, one might consider that a basic distinction is the one where the state owns all the land and citizens have more limited rights than full ownership, even if they may be the proprietor of the house they have built on it. When using this criterion, it would bring together countries such as the United Kingdom (‘The Queen owns all land’), the Democratic Republic of Congo (citizens may obtain an ‘eternal’ concession on the land, companies and foreigners only a concession for 25 years), and the People’s Republic of China (the state owns all land, but not necessarily the buildings built on it). Nevertheless the legal systems of those countries wouldn’t be considered to belong to one and the same legal family, when looked at from almost any other perspective. However, there is no ‘objective’ reason why this criterion would be less relevant compared to other criteria.

Everything depends on the underlying theory. If the worldwide dominant paradigm accepts the distinction between the Romano-Germanic family and the Anglo-Saxon family as the most vital one, the criterion of the state ownership of land as opposed to full private ownership may still be useful for the selection of legal systems for some micro-comparison, but it will not be accepted for classifying legal systems worldwide.

Also, the traditional ‘legal families’ classifications assume that one specific criterion or structure may be considered decisive for classifying the totality of each legal system into one and the same family. However, as all these classifications are based on private law only, it is obvious that a public law classification may lead to quite different results, again depending on the criteria used (kingdom or republic, federal or centralized state, direct elections of the key governing bodies or not, states with or without a constitutional court, degree of respect of human rights, etc.). Within private law, one may also argue that it is not possible to make one overall classification, but that a further distinction has to be made (family law, land law, inheritance law, labour law, etc.). If this would be accepted, it would throw a different light on our example of the ownership of land. Suddenly, bringing together the UK, Congo and China into one legal ‘land law’ family, wouldn’t only sound reasonable but even quite convincing.

‘The minimum content and the minimum complexity of all legal systems, together with the principles of individuation, determine the necessary internal relations existing in every legal system, that is the internal structure which is necessarily common to all legal systems’ (Raz 1980, p. 141).

4.3 The analytical method

Well known in the Anglo-Saxon legal world, but less in the rest of the world, is the analysis of the concept of ‘right’ by the American law professor Wesley Newcomb Hohfeld (Hohfeld 1919). He noticed that the concept of ‘right’ is used in several different meanings. It may mean a ‘claim’, a ‘power’, a ‘liberty’, or some other legal concepts, which he calls ‘immunity’ (escaping from someone else’s legal power) and ‘privilege’ (an exception to a more general prohibition). This refinement of the concept of ‘right’ was an important step forward in analysing the ‘deep structure’ of the concept of ‘right’ and in clarifying the actual meaning of this word, as used in several different contexts. Moreover, and most importantly, he studied the logical relation between the different sub-concepts of ‘right’ and other concepts, such as ‘duty’ or ‘liability’. For example, if one has the right to do A, there can be no duty not to do A. Hohfeld distinguished ‘legal opposites’ (one cannot have at the same time a right and non-right on the same object, or a privilege and a duty as to the same behaviour) and ‘legal correlatives’ (when A has a right against B, then B has a correlative duty towards A) (Hohfeld 1919, p. 36). Here, we are mainly interested in the analytical force of such a distinction for comparative law. Many legal concepts, in all legal systems, contain a bundle of ‘rights’ of a different kind. ‘Property’, for instance, includes a claim (of non-interference), a liberty (to use) and a power (to transfer the property rights partly or fully). By looking at this deeper level we may better distinguish differences and commonalities between legal systems as to apparently similar or different concepts (e.g., ‘ownership’ of land vs ‘fee simple absolute in possession’, ‘easement’ vs ‘servitude’, ‘mortgage’ vs ‘ hypothèque ’) used in each legal language. A broad concept such as ‘trust’ in the Anglo-Saxon tradition is unknown in Continental Europe. 15 x It is interesting to note that after several legislative experiments in Russia in the 1990s with the introduction of the concept of trust ‘lawmakers and the majority of Russian civil law academics rejected the Anglo-American trust’ (Zhdanov 2006, p. 182). What is currently called the ‘Russian trust management’ is a contractual obligation and doesn’t have much in common with the Anglo-American ‘trust’, which is a property law concept (Zhdanov 2006, p. 182). However, upon a closer look, it appears that, depending on the context, rather similar constructions may sometimes be discovered and clear differences at other times (e.g., the power of the creditor in some cases to seize money directly with a third person, as if it were his property (‘imposed trust’), which is impossible on the Continent). Only at the deeper ‘Hohfeldian’ level, adequate comparison between the ‘trust’ and continental legal concepts and constructions becomes possible.

Brouwer and Hage believe that, by using the Hohfeldian analysis, or another of that kind, ‘the private law of the different European countries can be reconstructed in terms of a limited set of the same basic concepts’ (Brouwer & Hage 2007, p. 4). According to them, such a set of basic concepts should allow for correct representations of the contents of private law and render it comprehensive and non-redundant (Brouwer & Hage 2007, p. 7). Characteristic of a basic concept is, moreover, that it cannot be specified in terms of other, more elementary concepts (Brouwer & Hage 2007, p. 12). For Brouwer and Hage there are only two basic legal concepts in private law: ‘duty’ and ‘competence’ (p. 18ff).

The above mentioned examples also point to the conclusion that it is not possible to disconnect concepts from the rules of the legal system to which they belong. The content of a legal concept is defined by the actual rules governing the field covered by the concept, within a particular legal system at a specific moment of time. However, sometimes these are minor differences, and some common core may be detected, with concepts such as ‘will’, ‘ownership’, ‘state’, etc. For this reason, Åke Frändberg made a distinction between concepts that are ‘system-dependent’ and concepts that are (relatively) ‘system-independent’ (Frändberg 1987, p. 88-91). He proposed to work with ‘ideal types’ of such concepts. 16 x Following Max Weber. Brouwer and Hage call them ‘stereotype concepts’, following the terminology proposed by Hilary Putnam (Brouwer & Hage 2007, p. 11). According to Hedenius, as noted by Frändberg, a system-independent definition of ‘ownership’ contains two elements: ‘protection of possession’ and ‘freedom of disposal’. The ‘ideal type’ of ‘ownership’ (in a technical sense, not a normative one) is one with a total protection of possession and an absolute freedom of disposal (Hedenius 1975, cited by Frändberg 1987, p. 83ff). All actual concepts of ownership in the different legal systems may be defined on a scale of more or less protection of possession and more or less freedom of disposal. Combined with a Hohfeldian analysis, this approach may probably be refined, but the idea of using ‘ideal types’ in comparative law should certainly be fruitful.

A thorough analytical approach may, eventually, offer in its turn building blocks for a structural comparison of legal systems. In 1973, André-Jean Arnaud published his Essai d’analyse structurale du Code civil français . In this book, Arnaud aimed at ‘decoding’ the Code Napoléon , at drawing its ‘eucledian geometry’. As regards, for instance, the law of obligations, he discerns ‘jural opposites’, such as voluntary/involuntary, action based on the law (legislation) or on an act (e.g., a contract), a duty to give or to do (including not to do), a duty to give a thing or to give money, equilibrium or not, reciprocity or not, etc. (Arnaud 1973, p. 94-125). When revealing the deep structure of the (French) law of obligations, he finds a taxonomy with, as a grand total, 32 possible or even imaginable relations (Arnaud 1973, p. 122). 17 x Also Marie-Laure Izorche has proposed to compare legal relations, not just legal concepts and legal rules, firstly within a legal system and secondly between legal systems (Izorche 2001, p. 304-311). Arnaud concludes that his opposites do not exactly correspond to the ‘official’ opposites, as used in the Code (for example: synallagmatic/unilateral, aleatory/commutative), but that they offer a conceptual framework which is fundamentally valid for the law of (civil) obligations in any legal system (Arnaud 1973, p. 121). Whether this is correct has still to be checked, but at least it has the advantage of offering a structure built on the basis of an analytical research in one legal system with, as a working hypothesis, its validity for any legal system. If this were true, even only partially, this might be an important building block for the methodology of comparative law, as it is not just offering concepts, but a whole structure covering a whole field of law, a kind of Table of Mendeleev for the law of obligations.

The most ambitious attempt to determine the ‘legal grammar’ of legal systems in view of their analytical and structural comparison is to be found in the work of Leopold Pospisil (1971). As an anthropologist of law, he tried to work out a model that could be used for cross-cultural comparison, valid for both primitive societies and developed modern legal systems. Being well aware of the important role of ideology in law, which is most visible in cross-cultural comparison, he emphasizes the need for ‘a comparative analysis of basic “jural postulates”, derived from the culture and its institutions in general, on the one hand, and legal values, abstracted from the ius as implied in legal decisions, on the other’ (Pospisil 1971, p. 345). At a second stage, he worked out an analysis in terms of ‘legal correlates’, which should present the subdivisions of a legal concept or field in a logical, systematic, succinct and complete way. Again, the aim is to get a better understanding, at this deeper level, of the similarities and differences amongst different legal concepts and regulations. Pospisil, for example, has thus structured all different forms of terrain ownership amongst the Kapauku tribe in Papua New Guinea in the 1960s. For this, he used opposites, such as ‘owned by an individual’ or ‘owned by a group’, more or less exempt from control by others, limitations or not of rights to trespass. Some of the opposites he described, however, are clearly culture bound, such as the right to gather frogs or hunt ‘non rats’ (Pospisil 1971, p. 295). Pospisil called the systematic set of such jural opposites the ‘legal grammar’ of the analysed systems (Pospisil 1971, p. 346). One may doubt whether such a complete model may be worked out for comparing legal systems in quite different cultural contexts, but combined with the methods discussed in this paper it may be useful for understanding very different legal relations and conceptual frameworks in other cultures and for determining the most adequate level for comparing rather different legal systems.

4.4 The law-in-context method

All legal scholars will agree that comparative research cannot be limited to pure black-letter comparison of legal rules, concepts or systems. Even domestic legal doctrine will at least take into account the way the law works in practice, as far as it transpires from judicial decisions. On the other hand, law-in-context as a method cannot be isolated from the other methods. They are complementary and interdependent for an adequate understanding of the law. Whereas some forms of the analytical method could be carried out at a more abstract, conceptual level, rather disconnected from the underlying social reality, this is not the case with the other ways of comparison. The functional method refers already by definition to a context: which societal problem is solved with what kind of legal construction? If a society wants its citizens to act responsibly and carefully, so as to avoid to create damages to others, it may use tort law, contract law, statutory obligations, ‘subjective’ or ‘objective’ liability, accept ‘pure economic loss’ or not, etc. In different legal systems and situations legislators (or judges) may have chosen diverging means to reach such an end. In order to guarantee the payment of damages they may have introduced compulsory insurance or other ways that should lead to a balanced redistributive justice, as conceived in the world view of (the majority in) that society. Hence, the functional method is at least to some extent including a law-in-context method. 18 x Örücü sees the ‘sociological approach’ even as a variation of, what she calls, the ‘functional-institutional approach’ (Örücü 2007, p. 52). From several examples above, it appears that the structural method and most of the analytical method cannot be carried out without some minimum law-in-context approach, even if in practice it is often more hidden than made explicit.

There is a whole range of possible law-in-context methods of research. One may just point to some generally known context element, such as the liberal economic world view underlying the European Union; one may use data from historical, sociological, anthropological, psychological, etc. research, or even carry out such research oneself; one may set up a large interdisciplinary comparative project in which several non-legal disciplines are brought together. Much will depend on the focus of the research and on the available knowledge with the involved researchers, time and financial means when choosing the type and size of the law-in-context approach. In his law-in-context approach, Rodolfo Sacco has been focusing on the ‘legal formants’, on what has made the law as it is. In this approach it is notably the legal context which seems to be most important: constitutional and legislative rules, case law, and legal doctrine, but also ‘implied patterns’ and other hidden elements, such as world views, influencing the way law is interpreted and handled. He calls them ‘cryptotypes’ (Sacco 1991, p. 384-386): ‘Some cryptotypes are more specific, others more general. The more general they are, the harder they are to identify. In extreme cases they may form the conceptual framework for the whole system’ (Sacco 1991, p. 386). This ‘conceptual framework’, which I have called the ‘paradigmatical framework’ (Van Hoecke & Warrington 1998, p. 513-520) indeed plays a decisive role in the way law is perceived, interpreted and applied.

Putting law in context aims at understanding the law, as a foreigner to that legal system and, hence, explaining why the law is as it is. Inevitably, this implies empirical observation. This may lead to general explanatory propositions, as emphasized by John Henry Merryman, such as ‘developed legal systems contain procedures for controlling administrative legality’ (Merryman 1999). These are hypotheses about more universal characteristics of (sets of) legal systems. They should and can be tested against empirical data.

The (different) institutional contexts in the compared countries or societies play an important role in explaining apparent differences in law and legal practice. For instance, Adams, Weyers, and Griffiths showed to what extent the different health care systems influence the legal practice concerning euthanasia (or more exactly, ‘medical behaviour that potentially shortens life’) (Adams & Griffiths 2012, p. 293-296). 19 x And more thoroughly in: Griffiths, Weyers & Adams 2008. Referring to Koen Raes, Koen Lemmens pointed to the importance of tax law as an explanation for non-pecuniary losses being widely covered in Belgian law (Lemmens 2012, p. 324).

It should be clear that case law is not always offering a correct picture of the living law in a society. When, for instance, no case law can be found at all in some country, it may mean that the law has become obsolete, that the underlying societal problem has disappeared, but also that earlier problems as to the interpretation of the law have meanwhile been settled, so that cases are no longer brought to court, as everybody (or at least their counsellors) knows perfectly how to apply the law. It may also mean that a parallel ordering is governing the case, rather than the law (mafia for instance). Courts are the hospitals of social ordering. Only ‘ill’ cases come to court. The healthy ones remain invisible in the records of judicial decisions. For an overall account of legal reality, an analysis of court decisions in comparative research should be complemented by some legal sociological research. Legal sociology, in turn, cannot cover all aspects of reality and should, as far as needed according to the research questions, be supplemented by law and economics, and/or legal psychology and/or other disciplines. Researchers will always have to find a balance between the ideal research design, on the one hand, and what is feasible under the current circumstances, taking into account the restraints as to time, money and available knowledge, on the other.

The current ‘empirical legal research’ approach, which has become popular in the US and is slowly gaining ground in Europe as well, is a kind of modest legal sociology, without the ambition of creating grand theories, but just aiming at checking implicit assumptions of the law or the effect and efficiency of legislation. It should be obvious that such empirical testing is not only useful but very desirable or even necessary. In some cases a broader comparative scale, that transcends the borders of one single legal system, may offer more reliable information, compared to purely domestic research . 20 x See e.g. Meuwese & Versteeg 2012. As to empirical research in comparative law, see also in Adams & Bomhoff 2012 the contributions by Julie De Coninck, Frederick Schauer, Maurice Adams and John Griffiths.

Empirical investigations in comparative research will be carried out using one or more of the varying methods known in the social sciences. Mainly qualitative methods will be used, but increasingly attempts are made to use quantitative methods in legal research. 21 x Including in comparative research, see the previous footnote. For a broad and excellent overview, see: Siems 2014, Part II ‘Extending the Methods of Comparative Law’ (p. 95-187) and most notably chapter 7 ‘Numerical comparative law’ (p. 146-187). Here we cannot go into detail on this point.

4.5 The historical method

Actually, the historical method is just one part of the ‘law-in-context method’, the context being here the historical origins of the present-day laws, which are compared. A specific feature of this historical approach is that its use cannot be avoided in any comparative research. Fully understanding the law as it functions today in some society, is only possible when one knows where it comes from and why it is as it is today. It is not accidental that also among legal historians ‘comparative legal history’ has become quite popular over the last decade or so. 22 x Since 2013 with its own journal Comparative Legal History , published with Hart, Oxford. For the comparatist, information and sources on legal history are generally more readily available than for other forms of law-in-context approaches. In traditional legal doctrine, many books will include some historical chapter or at least historical references to the origins of some legal concepts, legal rules, legal construction, etc. A historical study will inevitably also use sociological, economic, psychological, and/or other context data. In this way it may encompass, on occasion, a full law-in-context approach.

Historical comparisons may not only explain the origins and reasons for the law as it is today in that society, in some cases they may reveal that similar rules or approaches to law we find in one legal system have been present in another in the past, whereas the current law or views in the latter are different today. Differences may then appear to be just differences in stages of development of legal systems, or differences as to the outcome of ongoing tensions between two opposite views which remain latent in the compared societies, one view taking priority in one society, at least for some time, whereas the other view has become dominant in another legal system (a little like the victories and losses of ‘right wing’ and ‘left wing’ political parties in parliamentary elections in the Western world).

Example: In contract interpretation it looks like England, France and Germany are taking rather diverging positions as to what determines the meaning of the contract. In England it is (only) the text of the agreement that counts, in France the subjective will of the contracting parties, and in Germany an ‘objectivated’ will (what each party could reasonably have understood the intention of the other contracting party was). A historical research, however, reveals that the (French) subjective will theory was dominant in Germany in the second half of nineteenth century and obtained a central position in English law in about the same period, whilst a more objective approach to interpretation became popular among French lawyers by the end of eighteenth century. Actually, each of those approaches to contract law happens to have held a strong position in each of those countries at some time in history. It is mainly a matter of historical coincidence, which ‘explains’ the differences among the compared legal systems in a more recent past . 23 x For a more elaborate analysis: Van Hoecke 2004, p. 81-190.

The historical method may, thus, as it appears from this example, reveal other similarities and/or differences at a deeper level, compared to what transpires from an analysis at the surface level. 24 x For a historical analysis of cultural differences that explain the different approaches to commercial law in England and France, see Foster 2007, most notably at p. 269-277.

4.6 The common-core method

By the end of nineteenth century and early twentieth century, under the influence of the positive sciences, comparative lawyers wanted to find out which legal concepts, legal rules and legal institutions all societies had in common. 25 x E.g., the works of Hermann Post (1839-1895): Post 1876 and 1884. See also Lyall 2008. This ambition was soon reduced to the ‘civilized countries’ at the ‘same level of development’, but even that proved to be not very realistic. Hence, not much research results came out. In the second half of the twentieth century, new initiatives were taken with the aim of finding a common core among legal systems in some area. New was the focus on how the different legal systems were solving cases rather than on their legal rules and concepts. The largest research project was carried out at Cornell University between 1957 and 1967, in the area of the formation of contracts. 26 x Schlesinger 1968 (2 volumes). Comparatists from the following countries participated in it: US, India, Australia, France, Germany, Italy, and Switzerland. In Europe, the creation and development of the European Union together with tendencies to harmonize law within the EU stimulated research into the common core of law in Europe, to be identified within each of the member states. As a kind of follow-up of the Cornell project, the ‘Trento Common Core Project’ was set up in Italy by Ugo Mattei and Mauro Bussani. It was more ambitious: ‘The ambition of the work in which we are engaged here in Trento is a considerable broadening of the scope of the Cornell project. We are seeking the common core of the bulk of European private law, as divided in the general categories of contract, tort and property.’ 27 x Presentation of the project at the first general meeting on July 6 th , 1995 at http://www.common-core.org/index.php?view=article&catid=34%3Athe-project&id=46%3Athe-project-delivered-at-the-first-general-meeting-on-july-6-1995 (last consulted on July 13th, 2014). See also Bussani & Mattei 2000, p. 29-48. The ‘Ius Commune Casebooks for the Common Law of Europe’ were also set up in the nineties, in view of ‘uncovering common principles already underlying existing laws’ and to ‘enable students from across Europe and beyond to study the same leading cases and materials’. Also in judicial and legislative practice at the European level, some common-core comparative research has been carried out (Pescatore 1980; Van Der Mensbrugghe 2003). So, looking for the common core of many areas of law is done in legal practice (European administration, legislation and court practice), in legal education and in legal scholarship. Of course, looking for a common core also ends up in pointing to differences. Moreover, the increase in member states, most notably after 2004, when it jumped from 15 to 25 states, made it increasingly difficult to encompass all member states in such a research, so that for instance the Ius Commune Casebooks are mainly focusing on the three main legal systems for private law, England, France, and Germany (Beale et al. 2010, p. vii).

The common-core method is largely based on the functional method, to some extent combined with the law-in-context method. What is specific to the common-core method is that one looks for a common core in view of the (possible) harmonization of a certain part of the law. In Europe this is a dynamic process, both top-down through European rules and judicial decisions and bottom-up through legal education and legal scholarship. The common-core method looks for commonalities and differences between legal systems in view of the question to what extent harmonization on certain points would be possible among the compared legal systems or the question how a European rule, for instance, could be interpreted in such a way that it fits best the different national traditions.

• 5 Levels of comparison

‘Levels of comparison’ may be distinguished in various ways, comparing law from different perspectives. The levels on which the law is made and practised geographically (e.g., international, European, state, sub-state) will as such also influence the possible, or at least most evident, levels of comparison. 28 x For an overview of possible geographical levels, see Twining 2007, p. 85 (Appendix 1).

5.1 Macro and micro level

The most classical one is the distinction between macro and micro level, comparing legal systems as distinguished from comparing more concrete rules and legal solutions to societal problems in different legal systems.

A peculiar case is the comparison of EU law with national laws. As the structure of both types of legal system, and also their underlying objectives, are different, this will influence the methods for comparison. Renaud Dehousse gave as an example the disintegrative impact of EU law on national insurance policies, caused mainly by the diverging regulatory objectives pursued at each level: market integration for the EU, regulation of the insurance market at the national level (Dehousse 1994, p. 770). This implies that the functional, structural and analytical method should be carried out at a deeper level, where those more fundamental differences between the compared legal systems and regulations are taken into account. Also, the structural interdependence of both legal systems prevents the researcher from comparing them as if they were separate and independent units. ‘Cross-level comparisons’, argues Dehousse, ‘should be explicitly concerned with their interaction, and try to encompass the two levels within one single analysis’ and ‘the exercise is indispensable: in a complex situation, the analyst cannot simply assume a degree of simplicity that no longer exists’ (Dehousse 1994, p. 772). Hence, this will often lead to a combination of different methods to be used in such a cross-level comparison. A typical example is the comparison of the EU institutions and decision-making processes with the traditional separation of powers structures in the nation states: parliament, government, courts. In order to understand the differences one will have to analyse the diverging functions of those institutions at both levels (functional method), analysing the different competences of each body in order to draw a full picture of similarities and differences (analytical method) whilst also analysing the whole framework and the relations among the different bodies (structural method) and, finally, putting all this in a historical perspective (historical method).

5.2 Underlying general and professional legal cultures (or traditions)

Also, located at a deeper level are comparisons as to legal culture 29 x ‘Legal culture’ is used in a broad sense, encompassing tradition, usages, world view, paradigmatical legal frameworks and anything which is not ‘law’ in the strict sense but influences legal thinking. , legal argumentation (Bomhoff 2012), judicial decision making (Lasser 2004), styles of legal writing, diverging approaches to legal sources (MacCormick & Summers 1997; Komarek 2012) and to statutory interpretation (MacCormick & Summers 1991) (e.g., the use of travaux préparatoires ), the role of legal doctrine, the respective role of the legal professions (e.g., Van Caenegem 1987), the role of form in law in relation to substance (Atiyah & Summers 1987). Such comparative research has a strong theoretical dimension and tries to draw the background against which legal systems are understood and applied by those working in those legal cultures. The methods used for comparison at this level will mainly be analytical and historical, often revealing hidden world views, which strongly orientate the attitude towards the law. Even if such underlying legal cultures and world views are not part of the positive law as such, they mostly have a decisive influence on the final content of the law as applied in practice. 30 x See, e.g., for explaining a diverging application of the same European rules in England and Italy by the influence of tradition Nebbia 2000.

5.3 Law in action vs law in the books

Indeed, law in action may be (quite) different from law in the books. Most lawyers are well aware of this conclusion. That is why a comparison at the level of rules has to be complemented by, or in some cases started with, a comparison of judicial decisions. In some cases, such as very recent legislation or unavailability of other sources in a language one has access to, comparison will be limited to the level of legislation. However, in any substantive research in comparative law, both legislation and case law will have to be studied, as, in all legal systems, common law and civil law alike, they are both of decisive importance for knowing the law. 31 x When, a century ago, Roscoe Pound published his famous paper ‘Law in Books and Law in Action’ (1910) he mainly commented, sometimes approving, sometimes disapproving, on the way judges, public prosecutors and the police deliberately did not follow the written law. He considered it the work of lawyers ‘to make law in the books such that the law in action can conform to it’ (p. 86). This may show how diverging rules and doctrinal constructions may lead to similar decisions or how similar rules and/or doctrinal constructions may lead to diverging practical solutions. The main reason for this is that, especially in hard cases, judges first see a desirable solution for the case at hand, which, afterwards, they try to construct on the basis of the legal tools available within their legal system. However, the specific doctrinal constructions of a legal system and/or underlying paradigmatic views may block certain outcomes and facilitate other ones, as appears, for instance, from the example of the interpretation of contracts in section 5.4 below.

5.4 Surface level vs deep level

A more thorough look at superficial similarities and/or differences among legal systems may reveal that adequate comparison has, indeed, to take place at a deeper level of doctrinal construction or paradigmatic framework. Actually, Ernst Rabel considered it to be the aim of comparative law to go to that deeper level in order to get a true understanding of the law (Rabel 1924).

Example 1: International private law rules on jurisdiction

‘they think differently about how to apply jurisdiction and they even think differently about what jurisdiction is. Americans and Europeans disagree on the answers because they disagree on the relevant questions’ (Michaels 2006, p. 2011). 32 x He defines the American paradigm as ‘vertical, unilateral, domestic, and political’ and the European one as ‘horizontal, multilateral, international, and apolitical’.

‘although territoriality and state boundaries are central to both U.S. and European thinking about jurisdiction, they play different roles in each paradigm. In the domestic U.S. paradigm, the role of boundaries is one of delimitation . The power of a court goes to the state’s boundaries, not beyond them. It is fair to force a defendant into a court in the state with minimum contacts, but not beyond its boundaries. (…) By contrast, the role of state boundaries in the international European paradigm is one of allocation : the locus of an event or a party defines the place that has jurisdiction in a multilateral fashion’ (Michaels 2006, p. 1058).

Example 2: The interpretation of contracts

In France, the Cour de cassation has, for more than two centuries, considered the interpretation of contracts a matter of ‘fact’ not of law and, hence, left this to the lower courts. As a result, it escapes the control of the Cour de cassation , which only controls the correct application of the law, not the reality of facts. However, in order to be able to control such interpretations this court worked out a theory of ‘ dénaturation de l’acte ’, which assumes that texts may have a ‘clear meaning’ on their own, so that any ‘diverging’ interpretation would be incompatible with the ‘real meaning’ of this text. If judges depart from this ‘obvious meaning’ the Cour de cassation will quash the decision. French doctrinal legal writing concentrates on this problem rather than on the interpretation methods and reasoning by lower courts outside the realm of an alleged ‘ dénaturation de l’acte ’. No other legal system seems to have a comparable approach, due to the lack of ‘cassation’ and full reconsideration of the case or to different theories (there is no ‘denaturation’ theory in any of the other countries where the Napoleonic code was introduced). In Germany, discussions are focusing on the, rather diverging, articles in the civil code on the interpretation of contracts (§157 BGB) and of the ‘declaration of will’ for any legal act (§133 BGB). In England, the interpretation of contracts is not a subject in its own right, but is discussed in other contexts such as the question on whether there was ‘consideration’. However, the concept of ‘consideration’ is unknown in civil-law countries and typically linked to the common-law (business) conception of ‘contract’. This means that any comparison at the surface level of legislation, case law and legal doctrine is virtually impossible or meaningless. Comparison will have to be carried out at a deeper (paradigmatic) level of underlying views and theories on meaning and on interpretation. 33 x For a more thorough analysis, see Van Hoecke 2004, p. 165-195.

When comparing the law in radically different legal cultures, it is obvious that meaningful comparison will only be possible at the deeper level of the underlying cultures and not at the surface level of rules and concepts. Here, surface level comparative law inevitably turns into deep level comparative law and becomes mainly legal anthropology.

5.5 Doctrinal framework vs underlying legal culture

5.5.1 three basic conceptual frameworks in the world.

In private law, three conceptual legal frameworks have been very influential worldwide: the common law 34 x See on the territorial expansion of the common law: McPherson 2007, ch. 8, p. 295-325. , the French Code civil and the German Bürgerliches Gesetzbuch . Virtually all legal systems of nation states use one of them or a combination of two or more of them.

‘The result of this is a mosaic of highly diverse legal systems which, even if located in the circle of the “civil law” family, show a special coloration with its own and particular characteristics’ (Kleinheisterkamp 2006, p. 300).

In Africa, the former French, Belgian and Portuguese colonies largely inherited the Code Napoléon . Only South Africa takes a special position with its inheritance of Roman-Dutch law, combined with common law.

In the Islamic countries, parts of the civil law principles are derived from the Quran, but otherwise, former colonizers have been influential, such as France in the Maghreb countries. Other countries, such as Turkey, largely imported a European Code (the German BGB in this case).

In Russia, after 1991, legal doctrine had to a large extent to make a new start, within a new paradigmatic framework. The need for rapid legislative changes made the Russian draftsmen look for inspiration in the Western European Codes (Reid 1998, p. 43). Before the Russian revolution, until the mid-nineteenth century, most law professors were German, the language of education being Latin or German. The legal doctrine, which developed during the nineteenth and early twentieth century had been eradicated by the 1917 communist Revolution. Until the early nineties of the twentieth century, the civil law was first completely dominated by communist ideology and, later on, increasingly tried to combine these ideological premises with some degree of meeting the needs of social reality. This has led to an incoherent legal doctrine. 35 x See, most notably as to property law: Cameron 1977. Moreover, parts of the traditional civilian matters, such as granting a flat or eviction of a flat (by the public authorities) were governed by administrative law, hence limiting the scope of civil law.

‘[t]he modern legal systems of Japan, Korea and China were once all shaped by the reception of Western legal models, albeit to varying degrees and in a variety of ways’ (Kitagawa 2006, p. 259).

Central and Eastern European countries took up the Roman law tradition again, after a few decades of communism in the second half of twentieth century. Moreover, in the 1990s, in their desire to join the European Union, they were keen to adopt, as much as possible, Western European law for modernizing their own private law.

The Nordic countries in Europe never took over French, German or English law, but their doctrinal framework has largely been influenced by German legal scholarship (Husa, Nuotio & Pihlajamäki 2007, p. 9).

In Europe today, all legal systems are mixed ones. The Netherlands, for instance, started with the Code Napoléon in 1804 and basically kept it in 1838, when enacting their Burgerlijk Wetboek . Later on, German legal doctrine has been more influential than in the other countries that followed the Code civil tradition. This resulted in a new Burgerlijk Wetboek in force as from 1992 (most parts having been finished many years before). In the course of the last few decades there is, in The Netherlands, a notable influence of Anglo-Saxon doctrine, both English and American. Through EU law, but also European Human Rights law, concepts from French and German legal doctrine have entered the other legal systems, such as the (continental) good faith principle in the UK and Ireland, or the (German) proportionality principle in the other member states. Of course, this doesn’t necessarily imply a similar use or interpretation of these principles in the countries to which they travel (see e.g., Teubner 1998, p. 11-32).

5.5.2 With varying application according to the local legal culture

Conceptual frameworks are one thing, the content of the law (values, principles, rules) and the attitude towards the law are another. Of course, concepts cannot be completely isolated from rules or from their underlying principles. Property, marriage, leasing, contract, servitude or easement, have some common core of meaning all over the world, even if differences may be sometimes quite important (e.g., acceptance or not of homosexual marriage or of polygamous marriage). However, the larger cultural framework may give a quite different content, for instance, to a rule in Congo, which had been literally copied from the Belgian Civil code (e.g., rejecting monogamy). Japanese civil law is not German, notwithstanding the use of German doctrine, as informal rules still play an important role when it comes to (not) applying the law (Kitagawa 2006, p. 251-253). Also, within the same legal system, old traditions may make new law to be interpreted in such a way that it blocks all change. 36 x See the, already mentioned, example of diverging application of the same European rules in England and Italy by the influence of tradition, as analysed in Nebbia 2000. This deeper level of the underlying cultural differences is of utmost importance for correctly judging similarities and differences at the surface level, most notably, but not exclusively, when legal systems from states belonging to rather different cultural traditions are compared.

• 6 Tertium comparationis

In order to compare, it has been emphasized, we need a tertium comparationis . 37 x The concept has already been used by Ernst Rabel in 1924: Rabel 1924. We should not look at a foreign legal system with the eyes and doctrinal framework of our own legal system, but try to transcend it, by using external ‘neutral’ elements for comparing legal systems: ‘the comparatist must eradicate the preconceptions of his native legal system’ (Zweigert & Kötz 1998, p. 35). Indeed, describing law is not an ‘objective’ activity, it doesn’t offer ‘pure facts’ everybody would see in the same way, like a flower as compared to a tree, or a dog as compared to a cat. 38 x Although even these objects are only seen in the same way within cultures who know these objects, where cats and dogs are domesticated, etc. The way we see things is always determined by our own experience and world view. Hence, for human beings there are no ‘objective facts’ independent from human cultures. Looking at concepts, rules, institutions, and the like in other societies will, at least at a first stage, always happen at the background of one’s own legal system and doctrinal framework. What comparatists mainly wanted to emphasize with the tertium comparationis is the need to be aware of this bias and to try to get out of one’s own conceptual framework. What this ‘ tertium comparationis ’ could be and how to find it, remains less clear. Should one compare apples with oranges by reference to banana’s, or to pears and lemons? Or to an abstract concept of ‘fruit’? What could be the tertium comparationis when comparing the repudiation of a wife in Islamic law with divorce in Western law?

‘Thus, tertia comparationis cannot be defined as part of the method; comparison must remain open for new insights. Nevertheless, as a result of successful comparisons, the discipline has – perhaps unconsciously – developed a comparative second-order language describing the concepts that constitute the different religions’ beliefs. It has become highly useful for analysing the complex commonalities and differences of religion; all in all it represents a large body of comparative knowledge’ (Jansen 2006, p. 330).

• 7 Conclusion

The functional method is looking at the actual societal problem (e.g., a train accident) and the way this is solved in different jurisdictions (most notably compensating the victims for their damage) along similar or different roads (e.g., contract liability or tort liability) and with similar or different results (e.g., compensation or not for pure economic loss). The focus is on the societal problem and the actual result of the legal approach to that problem.

The analytical method is analysing (complex) legal concepts and rules (e.g., ownership) in different legal systems in such a way that common parts and differences are detected (claims, liberties, competences, etc.). The use of ‘ideal types’ makes it possible to rank those legal concepts, rules, institutions, on a scale according to the degree of fitting with the core characteristics of the ‘ideal type’.

The structural method is focusing on the framework of the law or of the elements reconstructed through an analytical approach. This is not the structure of each of the compared legal systems, but just one way of looking at them, which proves to be revealing for answering the research question.

The historical method will almost always be a necessary part of the methods used, for understanding differences and commonalities among legal systems and for determining their degree of belonging to a deeply rooted tradition or rather to accidental historical events.

The law-in-context method has inevitably also a historical dimension but focuses on the law’s current societal context, including, where appropriate, culture, economy, psychology, religion, etc. It studies a much broader context when compared to the functional or analytical method and implies the use of (results from) other disciplines.

Most of those methods will make the researcher move from a surface level of comparison to a deeper level: diverging types of ‘right’ included in complex legal concepts, rules and institutions, underlying world views, a detected common structural framework behind apparent differences, elements in history that are weakening the strength of seemingly opposed and irreconcilable approaches, etc.

One may also distinguish other levels of comparison, each of them implying the use of some method(s) rather than other ones. A first distinction is the one between micro and macro comparison: studying concrete legal problems or concrete legal concepts, rules or institutions, as compared to a broader approach as to, for instance, the overall organization of the state, or the organization of social security. A second distinction is the one between comparing the content of the law versus comparing doctrinal frameworks relatively independently from that content (a more ‘technical’ comparison).

It has to be repeated: the choice of method or level for comparison will mainly depend on the research question(s) guiding the research project. Different aims often imply different methods, be it not always. For instance, the different aims mentioned above, in section 1, of improving domestic law in France by the end of the nineteenth century when compared to harmonization initiatives in the EU by the end of the twentieth century, basically have led to the use of similar methods. In both cases, legal scholars have been looking for the ‘better solution’. According to Lambert, scholarly research should be able to prove the superiority of some legislation over others and should, hence, be chosen as ‘ droit commun législatif’ (Lambert 1900, p. 242; also: Jamin 2000, p. 733-751). Today the better solution approach is, explicitly or implicitly, underlying many comparative law research projects. This is most notably the case when economic analysis of law is used within a comparative law context. 42 x Even the idea of a ‘free market’ for legal concepts, legal rules, legal principles and the like is not new either. Christophe Jamin quotes the French scholars Boissonade and Saleilles, who already in the 19 th century talked about ‘a real international bazar’ (of ideas) in this context (Jamin 2000, p. 748).

Are the methods listed above the only possible ones? For instance, what about legal transplants? Legal transplants are rather an aim or a result, not a comparative method in its own right. 43 x In legal theory the study of legal transplants may be a way, a ‘method’ for research on legal change (Graziadei 2009). Successful legal transplants will require a law-in-context method. What seems to work well in another legal system may indeed fail to do so in one’s own legal system because of a different context. The import of European family law in most African countries during colonization times, and kept after that, is a clear example of failed transplants because of a quite different cultural context (Van Hoecke 2012). Hence, just copying foreign law could hardly be considered to be a ‘method’. It is rather the typical example of lack of method in comparative law.

What about social-sciences methodology? A law-in-context approach may require the use of at least some methods of the used social sciences (historical, economic, political, sociological, anthropological,…) unless the relevant information is already available in published research results. The social-science methods will then be an instrument within the context of one of the chosen comparative methods. Even at the level of the sheer description of foreign law one may, for instance, want to get a full and correct view of the law as it works in practice by taking interviews of relevant stakeholders and not limit oneself to consulting legislation, published case law and legal doctrine (or in case one doesn’t master sufficiently the local language). However, it still will remain part of a description of foreign law, which in turn will be part of some of the mentioned methods within the context of scholarly comparative legal research.

In this paper, I have tried to identify six methods which have been used in comparative research, in a broad sense, until now and which cannot be reduced to each other. This doesn’t exclude that other methods or combination of methods with other names would be possible, but for the time being these seem to cover the whole current methodology of comparative legal research.

Adams & Griffiths 2012 M. Adams & J. Griffiths, ‘Against “Comparative Method”: Explaining Similarities and Differences’, in: M. Adams & J. Bomhoff, Practice and Theory in Comparative Law , Cambridge: Cambridge University Press 2012, p. 279-301.

Antokolskaja 2007 M. Antokolskaja, ‘Comparative Family Law: Moving with the Times?’, in: E. Örücü & D. Nelken (eds.), Comparative Law. A Handbook , Oxford: Hart Publishing 2007, p. 241-262.

Arnaud 1973 A.J. Arnaud, Essai d'analyse structurale du Code civil français , Paris, Librairie générale de droit et de jurisprudence 1973.

Atiyah & Summers 1987 P.S. Atiyah & R.S.Summers, Form and Substance in Anglo-American Law , Oxford: Clarendon Press 1987.

Beale et al. 2010 H. Beale et al., Cases, Materials and Text on Contract Law , Oxford: Hart Publishing 2010, p. vii.

Boele-Woelki, Dethloff & Gephart 2014 K. Boele-Woelki, N. Dethloff & W. Gephart (eds.), Family Law and Culture in Europe: Developments, Challenges and Opportunities , Mortsel/Cambridge: Intersentia 2014.

Bomhoff 2012 J. Bomhoff, ‘Comparing Legal Argument’, in: M. Adams & J. Bomhoff (eds.), Practice and Theory in Comparative Law , Cambridge: Cambridge University Press 2012, p. 74-95.

Brouwer & Hage 2007 P.W. Brouwer & J. Hage, ‘Basic Concepts of European Private Law’, European Review of Private Law 2007, p. 3-26.

Bussani & Mattei 2000 M. Bussani & U. Mattei, ‘Le fonds commun du droit privé européen’, Revue international de droit comparé 2000, p. 29-48.

Cameron 1977 G.D. Cameron, ‘The Development of Individual Property Rights Under Soviet Law’, American Business Law Journal 1977, p. 333-355.

Claes & De Visser 2012 Monica Claes and Maartje de Visser, ‘Reflections on comparative method in European constitutional law’, in: M.Adams & J.Bomhoff, Practice and Theory in Comparative Law, Cambridge: University Press, 2012,143-169.

Dannemann 2012 G. Dannemann, ‘In Search of System Neutrality: Methodological Issues in the Drafting of European Contract Law Rules’, in: M. Adams & J. Bomhoff, Practice and Theory in Comparative Law , Cambridge: Cambridge University Press 2012, p. 96-119.

Dehousse 1994 R. Dehousse, ‘Comparing National EU Law: The Problem of Level of Analysis’, Am.Jo.Comp.L . 1994, p. 761-781.

Flanagan & Ahern 2011 B. Flanagan & S. Ahern, ‘Judicial Decision-Making and Transnational Law: A Survey of Common Law Supreme Court Judges’, International & Comparative Law Quarterly 2011, p. 1-28.

Foster 2007 N.H.D. Foster, ‘Comparative Commercial Law’, in: E. Örücü & D. Nelken, C omparative Law: A Handbook , Oxford: Hart Publishing 2007, p. 263-285.

Frändberg 1987 Å. Frändberg, ‘Systematics of Legal Concepts’, Scandinavian Studies in Law 1987-31, p. 83-115.

H. Patrick Glenn, 'The Aims of Comparative Law', in: J.M.Smits (ed.), Elgar Encyclopedia of Comparative Law, Cheltenham: Edward Elgar 2006,p. 57-65.

Graziadei 2003 M. Graziadei, ‘The Functionalist Heritage’, in: P. Legrand & R.Munday (eds.), Comparative Legal Studies: Traditions and Transitions , Cambridge: Cambridge University Press 2003, p. 100-127.

Graziadei 2009 M. Graziadei, ‘Legal Transplants and the Frontiers of Legal Knowledge’, Theoretical Inquiries in Law 2009, p. 723-743.

Hart 1961 H.L.A Hart, The Concept of Law , Oxford: Oxford University Press 1961, p. 77-96.

Hedenius 1975 I. Hedenius, ‘Analysen av äganderettsbegreppet’, in: B. Belfrage & L. Stille (eds.), Filosofi och rättsvetenskap , Lund: Doxa 1975, cited by Frändberg 1987, p. 83ff.

Hohfeld 1919 W.N. Hohfeld, Fundamental Legal Conceptions, as Applied in Judicial Reasoning , New Haven: Yale University Press 1919 (first published in the Yale Law Journal , 1917, reprinted Westport, CT: Greenwood Press 1978).

Husa, Nuotio & Pihlajamäki 2007 J. Husa, K. Nuotio & H. Pihlajamäki (eds.), Nordic Law – Between Tradition and Dynamism , Antwerp/Oxford: Intersentia 2007, p. 9.

Husa 2011 J.Husa, ‘Comparative Law, Legal Linguistics and Methodology of Legal Doctrine’ in: M.van Hoecke, ed., Methodologies of Legal Research. Which Kind of Method for What Kind of Discipline?, Oxford: Hart 2011, p. 209-228.

Husa 2013 J. Husa, ‘Functional Method in Comparative Law – Much Ado About Nothing?’, Eur.Rev.Priv.Law 2013, p. 4-21.

Izorche 2001 M.L. Izorche, ‘Propositions méthodologiques pour la comparaison’, Revue international de droit comparé 2001, p. 289-325.

Jamin 2000 C. Jamin, ‘Le vieux rêve de Saleilles et Lambert revisité. A propos du centenaire du congress international de droit comparé de Paris’, Revue international de droit comparé 2000, p. 733-751.

Jansen 2006 N. Jansen, ‘Comparative Law and Comparative Knowledge’, in: M. Reimann & R. Zimmermann (eds.), The Oxford Handbook of Comparative Law , Oxford: Oxford University Press 2006, ch. 9, p. 305-338.

Kitagawa 2006 Z. Kitagawa, ‘Comparative Law in East Asia’, in: M. Reimann & R. Zimmermann (eds.), The Oxford Handbook of Comparative Law , Oxford: Oxford University Press 2006, ch. 7, p. 237-260, at p. 251-253.

Kjær 2004 A.L. Kjær, ‘A Common Legal Language in Europe?’, in: M. Van Hoecke (ed.), Epistemology and Methodology of Comparative Law , Oxford: Hart Publishing 2004, p. 377-398.

Kleinheisterkamp 2006 J. Kleinheisterkamp, ‘Development of Comparative Law in Latin America’, in: M. Reimann & R. Zimmermann (eds.), The Oxford Handbook of Comparative Law , Oxford: Oxford University Press 2006, ch. 8, p. 161-301.

Komárek 2012 J. Komárek, ‘Reasoning with Previous Decisions’, in: M. Adams & J. Bomhoff (eds.), Practice and Theory in Comparative Law , Cambridge: Cambridge University Press 2012, p. 49-73.

Lambert 1900 E. Lambert, ‘Une réforme nécessaire des etudes de droit civil’, Revue inter. enseignement 1900, p. 242, 237.

Lasser 2004 M. Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy , Oxford: Oxford University Press 2004.

Lemmens 2012 K. Lemmens, ‘Comparative Law as an Act of Modesty: A Pragmatic and Realistic Approach to Comparative Legal Scholarship’, in: M. Adams & J. Bomhoff, Practice and Theory in Comparative Law , Cambridge: Cambridge University Press 2012, p. 302-325.

Lyall 2008 A. Lyall, ‘Early German Legal Anthropology: Albert Hermann Post and His Questionnaire’, Journal of African Law 2008, p. 114-138.

MacCormick & Summers 1997 N.D. MacCormick & R.S. Summers (eds.), Interpreting Precedents: A Comparative Study , Brookfield, VT: Aldershot/Dartmouth: Ashgate 1997.

McPherson 2007 B. McPherson, The Reception of English Law Abroad , Brisbane: Supreme Court of Queensland Library 2007, ch. 8, p. 295-325.

Merryman 1999 J.H. Merryman, ‘Comparative Law and Scientific Explanation’, in J.H. Merryman, The Loneliness of the Comparative Lawyer and Other Essays in Foreign and Comparative Law , The Hague/London/Boston: Kluwer Law International 1999, p. 478-502 (first published in J.N. Hazard & W.J. Wagner (eds.), Law in the USA in Social and Technological Revolution , Brussels: Bruylant 1974, p. 81-104).

Meuwese & Versteeg 2012 A. Meuwese & M. Versteeg, ‘Quantitative Methods for Comparative Constitutional law’, in: M. Adams & J. Bomhoff (eds.), Practice and Theory in Comparative Law , Cambridge: Cambridge University Press 2012, p. 230-257.

Michaels 2006 R. Michaels, ‘Two Paradigms of Jurisdiction’, Michigan Journal of International Law 2006, p. 1003-1069.

Michaels 2006 Ralf Michaels, ‘The Functional Method of Comparative Law’, in: M. Reimann & R. Zimmerman (eds.), Oxford Handbook of Comperative law 2006, ch. 10, p. 340-382.

Nebbia 2000 P. Nebbia, ‘Unfair Terms in Consumer Contracts: An Anglo-Italian Comparison’, in: M. Van Hoecke & F. Ost (eds.), The Harmonisation of European Private Law , Oxford: Hart Publishing 2000, p. 179-188.

Örücü 2006 E. Örücü, ‘Methodology of comparative law’, in: J.M. Smits (ed.), Elgar Encyclopedia of Comparative Law , Cheltenham/Northhampton: Edward Elgar 2006, ch. 41, p. 442-454.

Örücü 2007 E. Örücü, ‘Developing Comparative Law’, in: E. Örücü & D. Nelken (eds.), Comparative Law: A Handbook , Oxford: Hart Publishing 2007, p. 62.

Pescatore 1980 P. Pescatore, ‘Le recours dans la jurisprudence de la Cour de justice des Communautés européennes à des norms déduites de la comparaison des droits des Etats membres’, Revue internationale de droit comparé 1980, p. 337-.

Pospisil 1971 L. Pospisil, Anthropology of Law: A Comparative Theory , New York: Harper & Row 1971.

Post 1876 H. Post, Der Ursprung des Rechts. Prolegomena zu einer Allgemeinen vergleichenden Rechtswissenschaft , Oldenburg: Berndt & Schwarzer 1876.

Post 1884 H. Post , Die Grundlagen des Rechts und die Grundzüge seiner Entwickelungsgeschichte: Leitgedanken für den Aufbau einer allgemeinen Rechtswissenschaft auf soziologischer Basis , Oldenburg: A. Schwarz 1884.

Pound 1910 R. Pound, ‘Law in Books and Law in Action’, American Law Review 1910-44, p. 12-86.

Pound 1936 R. Pound, ‘What May We Expect from Comparative Law?’, American Bar Association Journal 1936-22, p. 56-60.

Rabel 1924 E. Rabel, ‘Aufgabe und Notwendigkeit der Rechtsvergleichung’, Rheinische Zeitschrift für Zivil- und Prozessrecht 1924, p. 279-301, reprinted in H.G. Leser (ed.), Ernst Rabel Gesammelte Aufsätze , vol. III, Arbeiten zur Rechtsvergleichung und zur Rechtsvereinheitlichung 1919-1954 , Tübingen: J.C.B. Mohr 1967, p. 1-21.

Raz 1980 J. Raz, The Concept of a Legal System , Oxford: Clarendon Press 1980, p. 141.

Reed 2008 R. Reed, ‘Foreign Precedents and Judicial Reasoning: The American Debate and British Practice’, Law Quarterly Review 2008, p. 253-273.

Reid 1998 E. Reid, ‘The Law of Trusts in Russia’, Review of Central and East European Law 1998, p. 43-56.

Rheinstein 1934 M. Rheinstein, ‘Comparative Law and Conflict of Laws in Germany’, University of Chicago Law Review 1934-35, p. 232-269.

Sacco 1991 R. Sacco, ‘Legal Formants. A Dynamic Approach to Comparative Law’, American Journal of Comparative Law 1991, p. 1-34 (part I) and p. 343-401 (part II).

Saleilles 1911 R. Saleilles, ‘Droit civil et droit comparé’, Revue inter. enseignement 1911, p. 22.

Samuel 2001 G. Samuel, An Introduction to Comparative Law Theory and Method , forthcoming (ch 5, II, p. 78 in the manuscript), with references to J.-M. Berthelot, ‘Programmes, paradigms, disciplines: pluralité et unité des sciences sociales’, in: J.-M. Berthelot (ed.), Epistémologie des sciences sociales , Paris: Presses Universitaires de France 2001, at p. 484, and J.-M. Berthelot, Les vertus de l’incertitude , Paris: PUF 1996, at p. 81.

Samuel 2014 G. Samuel, An Introduction to Comparative Law Theory and Method , Oxford: Hart Publishing 2014, p. 81-82.

Schlesinger 1968 R. Schlesinger (ed.), Formation of Contracts: A Study of the Common Core of Legal Systems , New York: Dobbs Ferry 1968 (2 volumes).

Siems 2014  M. Siems, Comparative Law , Cambridge: Cambridge University Press, 2014.

Teubner 1998 G. Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences’, Modern Law Review 1998, p. 11-32.

Twining 2007 W. Twining, ‘Globalisation and Comparative Law’, in: E. Örücü & D. Nelken (eds.), Comparative Law. A Handbook , Oxford: Hart Publishing 2007, p. 69-89.

Valcke 2012 C. Valcke, ‘Reflections on Comparative Law Methodology – Getting Inside Contract Law’, in: M. Adams & J. Bomhoff, Practice and Theory in Comparative Law , Cambridge: Cambridge University Press 2012, p. 22-48.

Van Caenegem 1987 R. Van Caenegem, Judges, Legislators and Professors , Cambridge: Cambridge University Press 1987.

Van der Mensbrugghe 2003 F. Van Der Mensbrugghe (ed.), L’utilisation de la méthode comparative en droit européen , Namur: Presses universitaires 2003.

Van Hoecke 2004 M. Van Hoecke, ‘Deep Level Comparative Law’, in: M. Van Hoecke (ed.), Epistemology and Methodology of Comparative Law , Oxford: Hart Publishing 2004, p.165-195.

Van Hoecke 2012 M. Van Hoecke, ‘Family Law Transfers from Europe to Africa: Lessons for the Methodology of Comparative Legal Research’, in: J. Gillespie & P. Nicholson, Law and Development and the Global Discourses of Legal Transfers , Cambridge: Cambridge University Press 2012, ch. 10, p. 273-295.

Van Hoecke 2014 M. Van Hoecke, ‘Do “Legal Systems” Exist? The Concept of Law and Comparative Law’, in: S. Donlan & L. Heckendorn Urscheler (eds.), Concepts of Law , Dartmouth: Ashgate 2014, ch. 3, p. 43-57.

Van Hoecke & Warrington 1998 M. Van Hoecke & M. Warrington, ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law’, The International and Comparative Law Quarterly 1998, p. 495-536.

Zhdanov 2006 A.A. Zhdanov, ‘Transplanting the Anglo-American Trust in Russian Soil’, Review of Central and Eastern European Law 2006, p. 179-231.

Zweigert & Kötz 1998 K. Zweigert & H. Kötz, Introduction to Comparative Law , Oxford: Clarendon Press 1998, p. 35.

1 This chaotic and unscientific situation has been well described by Esin Örücü: “There are comparative lawyers who see comparative law as a science with its own separate sphere. Others call comparative law merely a method of study and research or even a technique. Some regard it both as a comparative method and a comparative science of law, or see in comparative law more than one of these aspects. It is immediately obvious that those who see comparative law as a method only do not tell us what that method is, leaving this issue unanswered or very vaguely covered, and those who think or feel that comparative law must be more than a mere method do not seem to agree on what this subject-matter is.” (Örücü 2007, p. 62)

2 In the same sense: Adams & Griffiths 2012, p. 279-301; Örücü 2006, p. 450-451.

3 See also the debate in the US on citing or not foreign case law, which in its turn is located within the discussion between ‘originalists’ (following the historical meaning of legal texts) and ‘evolutionalists’ (wanting to adapt the text to changed circumstances) (Reed 2008, p. 253-273).

4 In the Elgar Encyclopedia of Comparative Law (Glenn 2006). Compare the ‘purposes of comparative law research’ as listed by Esin Örücü (2007, p. 53-56).

5 Compare: ‘Comparative law is like other sciences in that its aim must be the acquisition of knowledge. Like other branches of legal science, it seeks knowledge of law’ (Sacco 1991). Sacco is also referring to Zweigert and Kötz, who in their Introduction to Comparative Law use a similar wording (he refers to the pages 16-17 of the second edition of the German version of 1984).

6 See eg: Flanagan and Ahern 2011. Of course, such research has its value and for the purpose of this article (judges citing foreign law as a source of persuasive authority) it even makes sense to limit the research to the countries involved, as in many countries supreme courts will never cite any persuasive authority (even if they may have used it) but only the law they apply. However, the results of a comparison among Common Law or English language countries may only create a false impression of universality. In the mentioned article the survey covers courts from Britain, the Caribbean, Australia, South Africa, Ireland, India, Israel, Canada, New Zealand and the United States, in other words, countries from all continents.

7 In case of indigenous or other customary laws with an oral tradition it will, of course, have to be a sufficient access to the spoken language.

8 The idea was also to find the ‘ideal legislation’. It was an approach to comparative law based on natural law: ‘…consciously or unconsciously, it postulates natural law of the old rationalist type. It tacitly assumes that for every detail of every legislative problem there is one right universal rule, which the lawmaker is seeking to discover and to formulate. (…) The expert on comparative legislation combines the information afforded by the legislation of the world on any point you like and pulls out the one right rule’ (Pound 1936, p. 57).

9 In France, in the early 20 th century, most notably Raymond Saleilles and Edouard Lambert criticized the work of the Société de legislation comparée , which simply translated foreign legislation without taking into account how it worked in practice. These authors assumed that ‘real life’ was to be found in case law (Saleilles 1891, p. 219). Lambert was even opposed to using social sciences, which were at that time not sufficiently developed to be able to offer enough precise and useful information for comparative law (Lambert 1900, p. 237).

10 Samuel 2014, p. 81, with references to Berthelot, 2001, p. 484, and Berthelot 1996, p. 81.

11 The functional approach had been introduced to comparative law several decades earlier, partly along the line of fashionable ‘functionalist’ trends in other disciplines. In 1936, Roscoe Pound defined a ‘functional comparison’ as the ‘study of how the same thing may be brought about, the same problem may be met by one legal institution or doctrine or precept in one body of law and by another and quite different institution or doctrine or precept in another’ (Pound 1936, p. 59). In 1924, Ernst Rabel noted that solutions to contractual problems were largely the same in England, France, and Germany, notwithstanding quite different legal constructions of that field (Rabel 1924). According to Michele Graziadei the functional method would have its roots in 19 th -century international private law (Graziadei 2003, p. 103ff). Max Rheinstein, in his turn, considered Edouard Lambert to have been the ‘first conscious exponent’ of the ‘functional approach’ around 1900 (Rheinstein 1934-35, p. 250).

12 Jaakko Husa (2013) shows how ‘functionalism’ in comparative law has little to do with ‘functionalism’ in other disciplines.

13 She calls this the ‘functional-institutional approach’ and the previous one the ‘problem-solving approach’, but, of course, they are just the two sides of one and the same coin.

14 Typical examples may be found in the countries, such as Belgium, which kept or took over the Code Napoléon after Napoleon’s defeat in 1815 but interpreted unchanged articles of that code in a different, and sometimes even opposed, way, compared to France.

15 It is interesting to note that after several legislative experiments in Russia in the 1990s with the introduction of the concept of trust ‘lawmakers and the majority of Russian civil law academics rejected the Anglo-American trust’ (Zhdanov 2006, p. 182). What is currently called the ‘Russian trust management’ is a contractual obligation and doesn’t have much in common with the Anglo-American ‘trust’, which is a property law concept (Zhdanov 2006, p. 182).

16 Following Max Weber. Brouwer and Hage call them ‘stereotype concepts’, following the terminology proposed by Hilary Putnam (Brouwer & Hage 2007, p. 11).

17 Also Marie-Laure Izorche has proposed to compare legal relations, not just legal concepts and legal rules, firstly within a legal system and secondly between legal systems (Izorche 2001, p. 304-311).

18 Örücü sees the ‘sociological approach’ even as a variation of, what she calls, the ‘functional-institutional approach’ (Örücü 2007, p. 52).

19 And more thoroughly in: Griffiths, Weyers & Adams 2008.

20 See e.g. Meuwese & Versteeg 2012. As to empirical research in comparative law, see also in Adams & Bomhoff 2012 the contributions by Julie De Coninck, Frederick Schauer, Maurice Adams and John Griffiths.

21 Including in comparative research, see the previous footnote. For a broad and excellent overview, see: Siems 2014, Part II ‘Extending the Methods of Comparative Law’ (p. 95-187) and most notably chapter 7 ‘Numerical comparative law’ (p. 146-187).

22 Since 2013 with its own journal Comparative Legal History , published with Hart, Oxford.

23 For a more elaborate analysis: Van Hoecke 2004, p. 81-190.

24 For a historical analysis of cultural differences that explain the different approaches to commercial law in England and France, see Foster 2007, most notably at p. 269-277.

25 E.g., the works of Hermann Post (1839-1895): Post 1876 and 1884. See also Lyall 2008.

26 Schlesinger 1968 (2 volumes). Comparatists from the following countries participated in it: US, India, Australia, France, Germany, Italy, and Switzerland.

27 Presentation of the project at the first general meeting on July 6 th , 1995 at http://www.common-core.org/index.php?view=article&catid=34%3Athe-project&id=46%3Athe-project-delivered-at-the-first-general-meeting-on-july-6-1995 (last consulted on July 13th, 2014). See also Bussani & Mattei 2000, p. 29-48.

28 For an overview of possible geographical levels, see Twining 2007, p. 85 (Appendix 1).

29 ‘Legal culture’ is used in a broad sense, encompassing tradition, usages, world view, paradigmatical legal frameworks and anything which is not ‘law’ in the strict sense but influences legal thinking.

30 See, e.g., for explaining a diverging application of the same European rules in England and Italy by the influence of tradition Nebbia 2000.

31 When, a century ago, Roscoe Pound published his famous paper ‘Law in Books and Law in Action’ (1910) he mainly commented, sometimes approving, sometimes disapproving, on the way judges, public prosecutors and the police deliberately did not follow the written law. He considered it the work of lawyers ‘to make law in the books such that the law in action can conform to it’ (p. 86).

32 He defines the American paradigm as ‘vertical, unilateral, domestic, and political’ and the European one as ‘horizontal, multilateral, international, and apolitical’.

33 For a more thorough analysis, see Van Hoecke 2004, p. 165-195.

34 See on the territorial expansion of the common law: McPherson 2007, ch. 8, p. 295-325.

35 See, most notably as to property law: Cameron 1977.

36 See the, already mentioned, example of diverging application of the same European rules in England and Italy by the influence of tradition, as analysed in Nebbia 2000.

37 The concept has already been used by Ernst Rabel in 1924: Rabel 1924.

38 Although even these objects are only seen in the same way within cultures who know these objects, where cats and dogs are domesticated, etc. The way we see things is always determined by our own experience and world view. Hence, for human beings there are no ‘objective facts’ independent from human cultures.

39 Here, I’m not going into the discussion on the (im)possibility of creating a ‘meta-language’ (see Kjær 2004). Every discipline develops its own concepts. These ‘second-order languages’ are, of course, not full languages like Esperanto, but coherent conceptual tool kits. In a way, Roman law functioned in the Middle Ages as a second-order language for interpreting local customary law.

40 E.g.: ‘I had been able to determine through previous work that mismatches between subjective intention and objective declaration, or the concern to consecrate yet also discipline party intention, were considered legal issues under English law and French law alike. Those issues therefore arguably provided appropriate tertia comparationis for investigating the English and the French law of, respectively, contractual mistake and contractual interpretation, even though they might prove inadequate for the purpose of investigating other areas of English and French contract law’ (Valcke 2012, p. 33). This shows how a second-order language may partly overlap with the legal languages of the compared legal systems. Also, it shows how some concepts may be useful at a meta-level for some specific comparison, without having some broader, let alone ‘universal’ validity.

41 For a good overview of the problems related to such ‘harmonized’ legal language, see Dannemann 2012. See also, in the same volume, the contribution of Claes and De Visser (2012, p. 143-169).

42 Even the idea of a ‘free market’ for legal concepts, legal rules, legal principles and the like is not new either. Christophe Jamin quotes the French scholars Boissonade and Saleilles, who already in the 19 th century talked about ‘a real international bazar’ (of ideas) in this context (Jamin 2000, p. 748).

43 In legal theory the study of legal transplants may be a way, a ‘method’ for research on legal change (Graziadei 2009).

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Guests at the 2024 FT Innovative Lawyers Awards in Hong Kong speak about the changes, opportunities and challenges for lawyers around generative AI

At a recent global round-table involving 25 legal industry leaders, hosted by the Financial Times, there was a consensus that the law firm of the future would be unrecognisable to the current generation. For a start, many firms have already moved into consulting services in areas adjacent to the law, such as advising on general business risk and implementing regulatory compliance programmes. At Ashurst’s consulting business, for example, annual income grew by just over 60 per cent last year.

Gilbert observes that a multidisciplinary approach could become the norm, and that even firms that want to stick to their legal knitting will hire many more scientists and technologists to deliver legal advice.

So far, law firms in the Asia-Pacific region are using generative AI for tasks ranging from research to creating, analysing and summarising legal documents. Some firms, not just the biggest, have set up proprietorial AI assistants — including Clifford Chance Assist, KWM Chat and Ask. KAI from Khaitan & Co. The firms claim the benefits are immediate. In a King & Wood Mallesons survey of 900-plus active users, 18 per cent said KWM Chat saves between five and 10 hours a week, while more than 70 per cent said it saves up to four hours.

Different foundation models [of generative AI] show materially different performance and cost. Where the balance lies . . . is what we need to work out Ben Allgrove, Baker McKenzie

But many firms also sound a note of caution about generative AI’s immediate potential. Ben Allgrove, a partner and seasoned legal technologist at Baker McKenzie, the global law firm, warns that “generative AI hype has echoes of 2017”, when much-heralded advances in machine learning turned out to be modest.

It does mark a significant step up from previous iterations of artificial intelligence, he says, but Baker McKenzie is focusing its experimentation on discrete, client-specific tasks where the data is known to be solid before making big bets on particular AI models.

Language informs culture and vice versa, and I hope this AI will bring a better understanding of people Sue Kench, King & Wood Mallesons

For Allgrove, one of the most important questions is simply the outlay. Rolling out Microsoft Copilot, Harvey or other generative AI tools to 4,700 fee-earners, let alone all 13,000 staff, looks too expensive when the return on investment remains uncertain. “Different foundation models show materially different performance and cost. Where the balance lies between them is what we need to work out in years to come,” he says.

In addition, there are language issues. Ryutaro Nakayama, managing partner of Nishimura & Asahi, describes the challenge for his firm: “The Japanese language is more complicated than English. We have fewer available data sets, and a lot of Japanese contracts are still paper.” Instead, he envisages the biggest changes at Japanese law firms in the near future will come via a convergence of professional service advisers, where law firms offer adjacent consulting services.

Across the region, though, the short-term productivity gains from using generative AI — even for everyday tasks — look appreciable. “The jump could be better than [that generated by] email in the 1990s,” says Allgrove. “But there is a strategic question as to where those gains will land and where to jump.”

For now, law firm leaders in the region are upbeat about AI developments. Sue Kench, global chief executive at KWM, observes that, while change will arrive slower than some predict, she is already noting benefits to organisational culture at the Australian-Chinese firm.

“I was in one of our regular China management meetings and the improved WeChat [text] translation was better than having a [human] translation in my ear,” she says. “Language informs culture and vice versa, and I hope this AI will bring a better understanding of people.”

Methodology: FT Innovative Lawyers Asia-Pacific 2024

FT Innovative Lawyers Asia Pacific 2024 is a ranking, report and awards scheme for lawyers based in the region, produced by the FT and its research partner, RSGI, based on a unique methodology.

Law firms and in-house legal teams are invited to make submissions. Each of these is researched and scored out of 10 for originality, leadership, and impact — giving a maximum score of 30 for each published entry. Top-ranked entries in the report are shortlisted for the FT Innovative Lawyers Asia Pacific 2024 Awards.

Some 350 submissions and nominations were received from 76 law firms and 57 in-house legal teams. RSGI researchers checked and assessed them through interviews with clients, senior lawyers, executives and experts between February and April 2024. Featured entries are the submissions that ranked highest in each category.

FT Law Firm Index The index (above) provides a ranking and a holistic assessment of law firm success. Participating firms were assessed on their submissions and on a separate questionnaire, and ranked on the following criteria, with a maximum total score of 100.

Scores for each indicator are based on allocating a maximum available score to the top-rated firm in this field and recalibrating other scores accordingly:

Innovation The sum of scores for the top three submissions from each law firm entering the FT Innovative Lawyers Asia Pacific Awards 2024, including those that were not published. Scores were scaled to the maximum of 50 allocated to the leading entry.

Digital Law firms completed a questionnaire on their use of data and technology. Each of four questions was scored and benchmarked against other responses. Scores were scaled to the maximum of 20 allocated to the leading entry.

People Law firms completed a questionnaire about diversity and inclusion, wellbeing strategies, and investment in skills for lawyers and for business services people. Four questions were scored and benchmarked against other law firm responses. Scores were scaled to the maximum of 20 allocated to the leading entry.

Social responsibility Law firms completed a questionnaire on their approach to social responsibility. Two questions covering commitment and investment in pro bono work, and social responsibility and ESG reporting were scored and benchmarked against other law firms. Scores were scaled to the maximum of 10 allocated to the leading entry.

RSGI research team: Mary Ormerod, Tom Saunders, Chris Sharp, Alex Volkers, Mina Jenkins, Toby Weston, Isobel Thorley, Reena SenGupta and Yasmin Lambert.

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Dissertations

Ennobling each other through collaborative inquiry: exploring music as a provocation for leadership development.

Ihan Ip , University of San Diego Follow

Date of Award

Degree name.

PhD Leadership Studies

Dissertation Committee

Cheryl Getz, EdD, Chair René Molenkamp, PhD, Member Donna Ladkin, PhD, Member

leadership development, arts-based methods, music, aesthetic knowing, facilitation, holding environment, safety, group process, collaboration, collective leadership, dialectics, paradigm shift, identity, inclusivity, belonging

Amid the challenges in a global village, leadership education needs to surpass traditional methods, nurturing creativity, flexibility, and adaptability. This study is a collaborative action inquiry that considers music as an arts-based method in service of leadership development. The study unfolded over five cycles, in which 14 coinquirers collaborated in a process of exploration. The study illuminates the strong potential of music as a provocation for leadership development and reveals crucial realizations in the area of facilitation in collective processes.

This dissertation tells the story of the inquiry with the voices of its coinquirers and offers insights on facilitation through my reflections as the researcher. It honored the fluidity of the process by gathering data through a combination of questionnaires, workshops, and individual conversations. Akin to the process of birthing or composition, both data collection and analysis occurred iteratively, accessing emergent, musically informed methods of sense-making.

This study found the intersection of music and leadership development emerged as a novel exploration. The findings underscore the importance of cocreating a holding environment, an awareness of the dynamics within collective leadership situations, scaffolding, and the profound value of experiential learning. Further, the findings reveal the necessity of strong mutual trust among group members. Music was shown to catalyze meaningful leadership education along the dimensions of identity, inclusivity, and belonging. The study also demonstrated music facilitates leadership learning at multiple levels—embodiment, awareness, and engagement in emergent processes—underscoring its potential as a transformative tool in leadership development.

Despite successfully designing musical leadership workshops, however, coinquirers experienced concern about taking their learning outside of the study. Implications for future research and practice include investigating the use of music in leadership in organizational contexts, finding ways to support leadership development facilitators to creatively use arts-based methods for their work, applying the use of music in social justice spaces, and developing more applied methods of leadership and facilitation through inquiry to deepen our ways of engaging with each other in our world.

Document Type

Dissertation: Open Access

Leadership Studies

Digital USD Citation

Ip, Ihan, "Ennobling Each Other Through Collaborative Inquiry: Exploring Music as a Provocation for Leadership Development" (2024). Dissertations . 1024. https://digital.sandiego.edu/dissertations/1024

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Since May 13, 2024

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Adult and Continuing Education Commons , Curriculum and Instruction Commons , Curriculum and Social Inquiry Commons , Leadership Studies Commons , Organization Development Commons

https://doi.org/10.22371/05.2024.015

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The FTC’s Noncompete Ban Was Long Overdue

Empirical evidence backs up the argument that trade secrets can remain protected even as talent is freely mobile.

The FTC’s new noncompete rule adopts a comprehensive prohibition on the use of noncompete clauses in any U.S. industry with any worker, including those at senior executive levels. The rule is promulgated using the FTC’s authority to determine practices that are unfair methods of competition. For those who have long argued against the use of noncompetes, this moment has been a long time coming. While the rule already faces legal challenges, company leaders would be well advised to make sure they understand what’s in the rule, its potential impact, and what it could mean for employees. Far from being an anti-business rule, the ban on noncompetes stands to spur innovation and grow markets.

The Federal Trade Commission (FTC) made history last week when it passed a new rule that fundamentally alters the landscape of employment agreements across the U.S.  The agency’s noncompete rule adopts a comprehensive prohibition on the use of noncompete clauses in any industry with any worker, including those at senior executive levels. The rule is promulgated using the FTC’s authority to determine practices that are unfair methods of competition. For those like me who have long argued against the use of noncompetes, this moment has been a long time coming.

• OL Orly Lobel is the Warren Distinguished Professor and director of the Center for Employment and Labor Policy (CELP) at University of San Diego and author of The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future (PublicAffairs), Talent Wants to be Free Why We Should Learn to Love Leaks, Raids and Free-Riding (Yale Press), and You Don’t Own Me (Norton).

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Developing a survey to measure nursing students’ knowledge, attitudes and beliefs, influences, and willingness to be involved in Medical Assistance in Dying (MAiD): a mixed method modified e-Delphi study

• Jocelyn Schroeder 1 ,
• Barbara Pesut 1 , 2 ,
• Lise Olsen 2 ,
• Nelly D. Oelke 2 &
• Helen Sharp 2  

BMC Nursing volume  23 , Article number:  326 ( 2024 ) Cite this article

31 Accesses

Metrics details

Medical Assistance in Dying (MAiD) was legalized in Canada in 2016. Canada’s legislation is the first to permit Nurse Practitioners (NP) to serve as independent MAiD assessors and providers. Registered Nurses’ (RN) also have important roles in MAiD that include MAiD care coordination; client and family teaching and support, MAiD procedural quality; healthcare provider and public education; and bereavement care for family. Nurses have a right under the law to conscientious objection to participating in MAiD. Therefore, it is essential to prepare nurses in their entry-level education for the practice implications and moral complexities inherent in this practice. Knowing what nursing students think about MAiD is a critical first step. Therefore, the purpose of this study was to develop a survey to measure nursing students’ knowledge, attitudes and beliefs, influences, and willingness to be involved in MAiD in the Canadian context.

The design was a mixed-method, modified e-Delphi method that entailed item generation from the literature, item refinement through a 2 round survey of an expert faculty panel, and item validation through a cognitive focus group interview with nursing students. The settings were a University located in an urban area and a College located in a rural area in Western Canada.

During phase 1, a 56-item survey was developed from existing literature that included demographic items and items designed to measure experience with death and dying (including MAiD), education and preparation, attitudes and beliefs, influences on those beliefs, and anticipated future involvement. During phase 2, an expert faculty panel reviewed, modified, and prioritized the items yielding 51 items. During phase 3, a sample of nursing students further evaluated and modified the language in the survey to aid readability and comprehension. The final survey consists of 45 items including 4 case studies.

Systematic evaluation of knowledge-to-date coupled with stakeholder perspectives supports robust survey design. This study yielded a survey to assess nursing students’ attitudes toward MAiD in a Canadian context.

The survey is appropriate for use in education and research to measure knowledge and attitudes about MAiD among nurse trainees and can be a helpful step in preparing nursing students for entry-level practice.

Peer Review reports

Medical Assistance in Dying (MAiD) is permitted under an amendment to Canada’s Criminal Code which was passed in 2016 [ 1 ]. MAiD is defined in the legislation as both self-administered and clinician-administered medication for the purpose of causing death. In the 2016 Bill C-14 legislation one of the eligibility criteria was that an applicant for MAiD must have a reasonably foreseeable natural death although this term was not defined. It was left to the clinical judgement of MAiD assessors and providers to determine the time frame that constitutes reasonably foreseeable [ 2 ]. However, in 2021 under Bill C-7, the eligibility criteria for MAiD were changed to allow individuals with irreversible medical conditions, declining health, and suffering, but whose natural death was not reasonably foreseeable, to receive MAiD [ 3 ]. This population of MAiD applicants are referred to as Track 2 MAiD (those whose natural death is foreseeable are referred to as Track 1). Track 2 applicants are subject to additional safeguards under the 2021 C-7 legislation.

Three additional proposed changes to the legislation have been extensively studied by Canadian Expert Panels (Council of Canadian Academics [CCA]) [ 4 , 5 , 6 ] First, under the legislation that defines Track 2, individuals with mental disease as their sole underlying medical condition may apply for MAiD, but implementation of this practice is embargoed until March 2027 [ 4 ]. Second, there is consideration of allowing MAiD to be implemented through advanced consent. This would make it possible for persons living with dementia to receive MAID after they have lost the capacity to consent to the procedure [ 5 ]. Third, there is consideration of extending MAiD to mature minors. A mature minor is defined as “a person under the age of majority…and who has the capacity to understand and appreciate the nature and consequences of a decision” ([ 6 ] p. 5). In summary, since the legalization of MAiD in 2016 the eligibility criteria and safeguards have evolved significantly with consequent implications for nurses and nursing care. Further, the number of Canadians who access MAiD shows steady increases since 2016 [ 7 ] and it is expected that these increases will continue in the foreseeable future.

Nurses have been integral to MAiD care in the Canadian context. While other countries such as Belgium and the Netherlands also permit euthanasia, Canada is the first country to allow Nurse Practitioners (Registered Nurses with additional preparation typically achieved at the graduate level) to act independently as assessors and providers of MAiD [ 1 ]. Although the role of Registered Nurses (RNs) in MAiD is not defined in federal legislation, it has been addressed at the provincial/territorial-level with variability in scope of practice by region [ 8 , 9 ]. For example, there are differences with respect to the obligation of the nurse to provide information to patients about MAiD, and to the degree that nurses are expected to ensure that patient eligibility criteria and safeguards are met prior to their participation [ 10 ]. Studies conducted in the Canadian context indicate that RNs perform essential roles in MAiD care coordination; client and family teaching and support; MAiD procedural quality; healthcare provider and public education; and bereavement care for family [ 9 , 11 ]. Nurse practitioners and RNs are integral to a robust MAiD care system in Canada and hence need to be well-prepared for their role [ 12 ].

Previous studies have found that end of life care, and MAiD specifically, raise complex moral and ethical issues for nurses [ 13 , 14 , 15 , 16 ]. The knowledge, attitudes, and beliefs of nurses are important across practice settings because nurses have consistent, ongoing, and direct contact with patients who experience chronic or life-limiting health conditions. Canadian studies exploring nurses’ moral and ethical decision-making in relation to MAiD reveal that although some nurses are clear in their support for, or opposition to, MAiD, others are unclear on what they believe to be good and right [ 14 ]. Empirical findings suggest that nurses go through a period of moral sense-making that is often informed by their family, peers, and initial experiences with MAID [ 17 , 18 ]. Canadian legislation and policy specifies that nurses are not required to participate in MAiD and may recuse themselves as conscientious objectors with appropriate steps to ensure ongoing and safe care of patients [ 1 , 19 ]. However, with so many nurses having to reflect on and make sense of their moral position, it is essential that they are given adequate time and preparation to make an informed and thoughtful decision before they participate in a MAID death [ 20 , 21 ].

It is well established that nursing students receive inconsistent exposure to end of life care issues [ 22 ] and little or no training related to MAiD [ 23 ]. Without such education and reflection time in pre-entry nursing preparation, nurses are at significant risk for moral harm. An important first step in providing this preparation is to be able to assess the knowledge, values, and beliefs of nursing students regarding MAID and end of life care. As demand for MAiD increases along with the complexities of MAiD, it is critical to understand the knowledge, attitudes, and likelihood of engagement with MAiD among nursing students as a baseline upon which to build curriculum and as a means to track these variables over time.

Aim, design, and setting

The aim of this study was to develop a survey to measure nursing students’ knowledge, attitudes and beliefs, influences, and willingness to be involved in MAiD in the Canadian context. We sought to explore both their willingness to be involved in the registered nursing role and in the nurse practitioner role should they chose to prepare themselves to that level of education. The design was a mixed-method, modified e-Delphi method that entailed item generation, item refinement through an expert faculty panel [ 24 , 25 , 26 ], and initial item validation through a cognitive focus group interview with nursing students [ 27 ]. The settings were a University located in an urban area and a College located in a rural area in Western Canada.

Participants

A panel of 10 faculty from the two nursing education programs were recruited for Phase 2 of the e-Delphi. To be included, faculty were required to have a minimum of three years of experience in nurse education, be employed as nursing faculty, and self-identify as having experience with MAiD. A convenience sample of 5 fourth-year nursing students were recruited to participate in Phase 3. Students had to be in good standing in the nursing program and be willing to share their experiences of the survey in an online group interview format.

The modified e-Delphi was conducted in 3 phases: Phase 1 entailed item generation through literature and existing survey review. Phase 2 entailed item refinement through a faculty expert panel review with focus on content validity, prioritization, and revision of item wording [ 25 ]. Phase 3 entailed an assessment of face validity through focus group-based cognitive interview with nursing students.

Phase I. Item generation through literature review

The goal of phase 1 was to develop a bank of survey items that would represent the variables of interest and which could be provided to expert faculty in Phase 2. Initial survey items were generated through a literature review of similar surveys designed to assess knowledge and attitudes toward MAiD/euthanasia in healthcare providers; Canadian empirical studies on nurses’ roles and/or experiences with MAiD; and legislative and expert panel documents that outlined proposed changes to the legislative eligibility criteria and safeguards. The literature review was conducted in three online databases: CINAHL, PsycINFO, and Medline. Key words for the search included nurses , nursing students , medical students , NPs, MAiD , euthanasia , assisted death , and end-of-life care . Only articles written in English were reviewed. The legalization and legislation of MAiD is new in many countries; therefore, studies that were greater than twenty years old were excluded, no further exclusion criteria set for country.

Items from surveys designed to measure similar variables in other health care providers and geographic contexts were placed in a table and similar items were collated and revised into a single item. Then key variables were identified from the empirical literature on nurses and MAiD in Canada and checked against the items derived from the surveys to ensure that each of the key variables were represented. For example, conscientious objection has figured prominently in the Canadian literature, but there were few items that assessed knowledge of conscientious objection in other surveys and so items were added [ 15 , 21 , 28 , 29 ]. Finally, four case studies were added to the survey to address the anticipated changes to the Canadian legislation. The case studies were based upon the inclusion of mature minors, advanced consent, and mental disorder as the sole underlying medical condition. The intention was to assess nurses’ beliefs and comfort with these potential legislative changes.

Phase 2. Item refinement through expert panel review

The goal of phase 2 was to refine and prioritize the proposed survey items identified in phase 1 using a modified e-Delphi approach to achieve consensus among an expert panel [ 26 ]. Items from phase 1 were presented to an expert faculty panel using a Qualtrics (Provo, UT) online survey. Panel members were asked to review each item to determine if it should be: included, excluded or adapted for the survey. When adapted was selected faculty experts were asked to provide rationale and suggestions for adaptation through the use of an open text box. Items that reached a level of 75% consensus for either inclusion or adaptation were retained [ 25 , 26 ]. New items were categorized and added, and a revised survey was presented to the panel of experts in round 2. Panel members were again asked to review items, including new items, to determine if it should be: included, excluded, or adapted for the survey. Round 2 of the modified e-Delphi approach also included an item prioritization activity, where participants were then asked to rate the importance of each item, based on a 5-point Likert scale (low to high importance), which De Vaus [ 30 ] states is helpful for increasing the reliability of responses. Items that reached a 75% consensus on inclusion were then considered in relation to the importance it was given by the expert panel. Quantitative data were managed using SPSS (IBM Corp).

Phase 3. Face validity through cognitive interviews with nursing students

The goal of phase 3 was to obtain initial face validity of the proposed survey using a sample of nursing student informants. More specifically, student participants were asked to discuss how items were interpreted, to identify confusing wording or other problematic construction of items, and to provide feedback about the survey as a whole including readability and organization [ 31 , 32 , 33 ]. The focus group was held online and audio recorded. A semi-structured interview guide was developed for this study that focused on clarity, meaning, order and wording of questions; emotions evoked by the questions; and overall survey cohesion and length was used to obtain data (see Supplementary Material 2  for the interview guide). A prompt to “think aloud” was used to limit interviewer-imposed bias and encourage participants to describe their thoughts and response to a given item as they reviewed survey items [ 27 ]. Where needed, verbal probes such as “could you expand on that” were used to encourage participants to expand on their responses [ 27 ]. Student participants’ feedback was collated verbatim and presented to the research team where potential survey modifications were negotiated and finalized among team members. Conventional content analysis [ 34 ] of focus group data was conducted to identify key themes that emerged through discussion with students. Themes were derived from the data by grouping common responses and then using those common responses to modify survey items.

Ten nursing faculty participated in the expert panel. Eight of the 10 faculty self-identified as female. No faculty panel members reported conscientious objector status and ninety percent reported general agreement with MAiD with one respondent who indicated their view as “unsure.” Six of the 10 faculty experts had 16 years of experience or more working as a nurse educator.

Five nursing students participated in the cognitive interview focus group. The duration of the focus group was 2.5 h. All participants identified that they were born in Canada, self-identified as female (one preferred not to say) and reported having received some instruction about MAiD as part of their nursing curriculum. See Tables  1 and 2 for the demographic descriptors of the study sample. Study results will be reported in accordance with the study phases. See Fig.  1 for an overview of the results from each phase.

Fig. 1  Overview of survey development findings

Phase 1: survey item generation

Review of the literature identified that no existing survey was available for use with nursing students in the Canadian context. However, an analysis of themes across qualitative and quantitative studies of physicians, medical students, nurses, and nursing students provided sufficient data to develop a preliminary set of items suitable for adaptation to a population of nursing students.

Four major themes and factors that influence knowledge, attitudes, and beliefs about MAiD were evident from the literature: (i) endogenous or individual factors such as age, gender, personally held values, religion, religiosity, and/or spirituality [ 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 ], (ii) experience with death and dying in personal and/or professional life [ 35 , 40 , 41 , 43 , 44 , 45 ], (iii) training including curricular instruction about clinical role, scope of practice, or the law [ 23 , 36 , 39 ], and (iv) exogenous or social factors such as the influence of key leaders, colleagues, friends and/or family, professional and licensure organizations, support within professional settings, and/or engagement in MAiD in an interdisciplinary team context [ 9 , 35 , 46 ].

Studies of nursing students also suggest overlap across these categories. For example, value for patient autonomy [ 23 ] and the moral complexity of decision-making [ 37 ] are important factors that contribute to attitudes about MAiD and may stem from a blend of personally held values coupled with curricular content, professional training and norms, and clinical exposure. For example, students report that participation in end of life care allows for personal growth, shifts in perception, and opportunities to build therapeutic relationships with their clients [ 44 , 47 , 48 ].

Preliminary items generated from the literature resulted in 56 questions from 11 published sources (See Table  3 ). These items were constructed across four main categories: (i) socio-demographic questions; (ii) end of life care questions; (iii) knowledge about MAiD; or (iv) comfort and willingness to participate in MAiD. Knowledge questions were refined to reflect current MAiD legislation, policies, and regulatory frameworks. Falconer [ 39 ] and Freeman [ 45 ] studies were foundational sources for item selection. Additionally, four case studies were written to reflect the most recent anticipated changes to MAiD legislation and all used the same open-ended core questions to address respondents’ perspectives about the patient’s right to make the decision, comfort in assisting a physician or NP to administer MAiD in that scenario, and hypothesized comfort about serving as a primary provider if qualified as an NP in future. Response options for the survey were also constructed during this stage and included: open text, categorical, yes/no , and Likert scales.

Phase 2: faculty expert panel review

Of the 56 items presented to the faculty panel, 54 questions reached 75% consensus. However, based upon the qualitative responses 9 items were removed largely because they were felt to be repetitive. Items that generated the most controversy were related to measuring religion and spirituality in the Canadian context, defining end of life care when there is no agreed upon time frames (e.g., last days, months, or years), and predicting willingness to be involved in a future events – thus predicting their future selves. Phase 2, round 1 resulted in an initial set of 47 items which were then presented back to the faculty panel in round 2.

Of the 47 initial questions presented to the panel in round 2, 45 reached a level of consensus of 75% or greater, and 34 of these questions reached a level of 100% consensus [ 27 ] of which all participants chose to include without any adaptations) For each question, level of importance was determined based on a 5-point Likert scale (1 = very unimportant, 2 = somewhat unimportant, 3 = neutral, 4 = somewhat important, and 5 = very important). Figure  2 provides an overview of the level of importance assigned to each item.

Ranking level of importance for survey items

After round 2, a careful analysis of participant comments and level of importance was completed by the research team. While the main method of survey item development came from participants’ response to the first round of Delphi consensus ratings, level of importance was used to assist in the decision of whether to keep or modify questions that created controversy, or that rated lower in the include/exclude/adapt portion of the Delphi. Survey items that rated low in level of importance included questions about future roles, sex and gender, and religion/spirituality. After deliberation by the research committee, these questions were retained in the survey based upon the importance of these variables in the scientific literature.

Of the 47 questions remaining from Phase 2, round 2, four were revised. In addition, the two questions that did not meet the 75% cut off level for consensus were reviewed by the research team. The first question reviewed was What is your comfort level with providing a MAiD death in the future if you were a qualified NP ? Based on a review of participant comments, it was decided to retain this question for the cognitive interviews with students in the final phase of testing. The second question asked about impacts on respondents’ views of MAiD and was changed from one item with 4 subcategories into 4 separate items, resulting in a final total of 51 items for phase 3. The revised survey was then brought forward to the cognitive interviews with student participants in Phase 3. (see Supplementary Material 1 for a complete description of item modification during round 2).

Phase 3. Outcomes of cognitive interview focus group

Of the 51 items reviewed by student participants, 29 were identified as clear with little or no discussion. Participant comments for the remaining 22 questions were noted and verified against the audio recording. Following content analysis of the comments, four key themes emerged through the student discussion: unclear or ambiguous wording; difficult to answer questions; need for additional response options; and emotional response evoked by questions. An example of unclear or ambiguous wording was a request for clarity in the use of the word “sufficient” in the context of assessing an item that read “My nursing education has provided sufficient content about the nursing role in MAiD.” “Sufficient” was viewed as subjective and “laden with…complexity that distracted me from the question.” The group recommended rewording the item to read “My nursing education has provided enough content for me to care for a patient considering or requesting MAiD.”

An example of having difficulty answering questions related to limited knowledge related to terms used in the legislation such as such as safeguards , mature minor , eligibility criteria , and conscientious objection. Students were unclear about what these words meant relative to the legislation and indicated that this lack of clarity would hamper appropriate responses to the survey. To ensure that respondents are able to answer relevant questions, student participants recommended that the final survey include explanation of key terms such as mature minor and conscientious objection and an overview of current legislation.

Response options were also a point of discussion. Participants noted a lack of distinction between response options of unsure and unable to say . Additionally, scaling of attitudes was noted as important since perspectives about MAiD are dynamic and not dichotomous “agree or disagree” responses. Although the faculty expert panel recommended the integration of the demographic variables of religious and/or spiritual remain as a single item, the student group stated a preference to have religion and spirituality appear as separate items. The student focus group also took issue with separate items for the variables of sex and gender, specifically that non-binary respondents might feel othered or “outed” particularly when asked to identify their sex. These variables had been created based upon best practices in health research but students did not feel they were appropriate in this context [ 49 ]. Finally, students agreed with the faculty expert panel in terms of the complexity of projecting their future involvement as a Nurse Practitioner. One participant stated: “I certainly had to like, whoa, whoa, whoa. Now let me finish this degree first, please.” Another stated, “I'm still imagining myself, my future career as an RN.”

Finally, student participants acknowledged the array of emotions that some of the items produced for them. For example, one student described positive feelings when interacting with the survey. “Brought me a little bit of feeling of joy. Like it reminded me that this is the last piece of independence that people grab on to.” Another participant, described the freedom that the idea of an advance request gave her. “The advance request gives the most comfort for me, just with early onset Alzheimer’s and knowing what it can do.” But other participants described less positive feelings. For example, the mature minor case study yielded a comment: “This whole scenario just made my heart hurt with the idea of a child requesting that.”

Based on the data gathered from the cognitive interview focus group of nursing students, revisions were made to 11 closed-ended questions (see Table  4 ) and 3 items were excluded. In the four case studies, the open-ended question related to a respondents’ hypothesized actions in a future role as NP were removed. The final survey consists of 45 items including 4 case studies (see Supplementary Material 3 ).

The aim of this study was to develop and validate a survey that can be used to track the growth of knowledge about MAiD among nursing students over time, inform training programs about curricular needs, and evaluate attitudes and willingness to participate in MAiD at time-points during training or across nursing programs over time.

The faculty expert panel and student participants in the cognitive interview focus group identified a need to establish core knowledge of the terminology and legislative rules related to MAiD. For example, within the cognitive interview group of student participants, several acknowledged lack of clear understanding of specific terms such as “conscientious objector” and “safeguards.” Participants acknowledged discomfort with the uncertainty of not knowing and their inclination to look up these terms to assist with answering the questions. This survey can be administered to nursing or pre-nursing students at any phase of their training within a program or across training programs. However, in doing so it is important to acknowledge that their baseline knowledge of MAiD will vary. A response option of “not sure” is important and provides a means for respondents to convey uncertainty. If this survey is used to inform curricular needs, respondents should be given explicit instructions not to conduct online searches to inform their responses, but rather to provide an honest appraisal of their current knowledge and these instructions are included in the survey (see Supplementary Material 3 ).

Some provincial regulatory bodies have established core competencies for entry-level nurses that include MAiD. For example, the BC College of Nurses and Midwives (BCCNM) requires “knowledge about ethical, legal, and regulatory implications of medical assistance in dying (MAiD) when providing nursing care.” (10 p. 6) However, across Canada curricular content and coverage related to end of life care and MAiD is variable [ 23 ]. Given the dynamic nature of the legislation that includes portions of the law that are embargoed until 2024, it is important to ensure that respondents are guided by current and accurate information. As the law changes, nursing curricula, and public attitudes continue to evolve, inclusion of core knowledge and content is essential and relevant for investigators to be able to interpret the portions of the survey focused on attitudes and beliefs about MAiD. Content knowledge portions of the survey may need to be modified over time as legislation and training change and to meet the specific purposes of the investigator.

Given the sensitive nature of the topic, it is strongly recommended that surveys be conducted anonymously and that students be provided with an opportunity to discuss their responses to the survey. A majority of feedback from both the expert panel of faculty and from student participants related to the wording and inclusion of demographic variables, in particular religion, religiosity, gender identity, and sex assigned at birth. These and other demographic variables have the potential to be highly identifying in small samples. In any instance in which the survey could be expected to yield demographic group sizes less than 5, users should eliminate the demographic variables from the survey. For example, the profession of nursing is highly dominated by females with over 90% of nurses who identify as female [ 50 ]. Thus, a survey within a single class of students or even across classes in a single institution is likely to yield a small number of male respondents and/or respondents who report a difference between sex assigned at birth and gender identity. When variables that serve to identify respondents are included, respondents are less likely to complete or submit the survey, to obscure their responses so as not to be identifiable, or to be influenced by social desirability bias in their responses rather than to convey their attitudes accurately [ 51 ]. Further, small samples do not allow for conclusive analyses or interpretation of apparent group differences. Although these variables are often included in surveys, such demographics should be included only when anonymity can be sustained. In small and/or known samples, highly identifying variables should be omitted.

There are several limitations associated with the development of this survey. The expert panel was comprised of faculty who teach nursing students and are knowledgeable about MAiD and curricular content, however none identified as a conscientious objector to MAiD. Ideally, our expert panel would have included one or more conscientious objectors to MAiD to provide a broader perspective. Review by practitioners who participate in MAiD, those who are neutral or undecided, and practitioners who are conscientious objectors would ensure broad applicability of the survey. This study included one student cognitive interview focus group with 5 self-selected participants. All student participants had held discussions about end of life care with at least one patient, 4 of 5 participants had worked with a patient who requested MAiD, and one had been present for a MAiD death. It is not clear that these participants are representative of nursing students demographically or by experience with end of life care. It is possible that the students who elected to participate hold perspectives and reflections on patient care and MAiD that differ from students with little or no exposure to end of life care and/or MAiD. However, previous studies find that most nursing students have been involved with end of life care including meaningful discussions about patients’ preferences and care needs during their education [ 40 , 44 , 47 , 48 , 52 ]. Data collection with additional student focus groups with students early in their training and drawn from other training contexts would contribute to further validation of survey items.

Future studies should incorporate pilot testing with small sample of nursing students followed by a larger cross-program sample to allow evaluation of the psychometric properties of specific items and further refinement of the survey tool. Consistent with literature about the importance of leadership in the context of MAiD [ 12 , 53 , 54 ], a study of faculty knowledge, beliefs, and attitudes toward MAiD would provide context for understanding student perspectives within and across programs. Additional research is also needed to understand the timing and content coverage of MAiD across Canadian nurse training programs’ curricula.

The implementation of MAiD is complex and requires understanding of the perspectives of multiple stakeholders. Within the field of nursing this includes clinical providers, educators, and students who will deliver clinical care. A survey to assess nursing students’ attitudes toward and willingness to participate in MAiD in the Canadian context is timely, due to the legislation enacted in 2016 and subsequent modifications to the law in 2021 with portions of the law to be enacted in 2027. Further development of this survey could be undertaken to allow for use in settings with practicing nurses or to allow longitudinal follow up with students as they enter practice. As the Canadian landscape changes, ongoing assessment of the perspectives and needs of health professionals and students in the health professions is needed to inform policy makers, leaders in practice, curricular needs, and to monitor changes in attitudes and practice patterns over time.

Availability of data and materials

The datasets used and/or analysed during the current study are not publicly available due to small sample sizes, but are available from the corresponding author on reasonable request.

Abbreviations

British Columbia College of Nurses and Midwives

Medical assistance in dying

Nurse practitioner

Registered nurse

University of British Columbia Okanagan

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Acknowledgements

We would like to acknowledge the faculty and students who generously contributed their time to this work.

JS received a student traineeship through the Principal Research Chairs program at the University of British Columbia Okanagan.

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JS made substantial contributions to the conception of the work; data acquisition, analysis, and interpretation; and drafting and substantively revising the work. JS has approved the submitted version and agreed to be personally accountable for the author's own contributions and to ensure that questions related to the accuracy or integrity of any part of the work, even ones in which the author was not personally involved, are appropriately investigated, resolved, and the resolution documented in the literature. BP made substantial contributions to the conception of the work; data acquisition, analysis, and interpretation; and drafting and substantively revising the work. BP has approved the submitted version and agreed to be personally accountable for the author's own contributions and to ensure that questions related to the accuracy or integrity of any part of the work, even ones in which the author was not personally involved, are appropriately investigated, resolved, and the resolution documented in the literature. LO made substantial contributions to the conception of the work; data acquisition, analysis, and interpretation; and substantively revising the work. LO has approved the submitted version and agreed to be personally accountable for the author's own contributions and to ensure that questions related to the accuracy or integrity of any part of the work, even ones in which the author was not personally involved, are appropriately investigated, resolved, and the resolution documented in the literature. NDO made substantial contributions to the conception of the work; data acquisition, analysis, and interpretation; and substantively revising the work. NDO has approved the submitted version and agreed to be personally accountable for the author's own contributions and to ensure that questions related to the accuracy or integrity of any part of the work, even ones in which the author was not personally involved, are appropriately investigated, resolved, and the resolution documented in the literature. HS made substantial contributions to drafting and substantively revising the work. HS has approved the submitted version and agreed to be personally accountable for the author's own contributions and to ensure that questions related to the accuracy or integrity of any part of the work, even ones in which the author was not personally involved, are appropriately investigated, resolved, and the resolution documented in the literature.

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Schroeder, J., Pesut, B., Olsen, L. et al. Developing a survey to measure nursing students’ knowledge, attitudes and beliefs, influences, and willingness to be involved in Medical Assistance in Dying (MAiD): a mixed method modified e-Delphi study. BMC Nurs 23 , 326 (2024). https://doi.org/10.1186/s12912-024-01984-z

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Boynton Beach's Christopher Wilder suspected in many Florida killings. 2 are in Loxahatchee

Race car driver and wealthy business owner Christopher Wilder of Boynton Beach went on a seven-week killing and torture rampage in 1984, abducting 12 women and killing nine of them.

He lured them from shopping malls posing as a fashion photographer and promising to help them establish a modeling career.

Hulu is airing a docu-series called "The Beauty Queen Killer: 9 Days of Terror" about him.

He had come to Palm Beach County in 1969, escaping questions from Australian authorities about the rape and killings of two 15-year-old girls on a Sydney beach. In Palm Beach County, authorities arrested him on rape charges, but he was acquitted.

More: Hulu to air show on Christopher Wilder of Boynton Beach who killed 9 in a nationwide rampage

He’s suspected in other disappearances and killings from Florida.

Here are some other crimes that law enforcement believe he may have committed.

2 killings near Christopher Wilder's land in Loxahatchee, Florida

Wilder owned several acres of property in Loxahatchee.

Nearby skeletal remains were discovered in a green nylon bag on May 29, 1982, in the 300 block of F Road north of Southern Boulevard. The remains were not identified until 2013 when the Palm Beach County Sheriff’s Office looked at dental records, finding they belonged to 17-year-old Tina Marie Beebe.

Beebe was last seen on Jan. 20, 1981, in Fort Myers, when she told her sister that a man had offered her a job as a model. The sheriff’s office believes Beebe was killed.

With Beebe’s remains were a digital watch and earrings of U.S. pennies minted in 1979.

In another Loxahatchee case, a real estate agent inspecting land nearby on Dec. 19, 1982, found the decomposed remains of a female dispersed through thick bush in woods 140 yards north of Okeechobee Boulevard off F Road. She had been shot in the head and has not been identified.

Boca Raton aspiring model's death in 1983 like 'Wilder's method of operations'

Shari Lynne Ball, 20, of Boca Raton told relatives that she was leaving to pursue a modeling career. She called a friend two days later from a truck stop in Ashland, Virginia, then went missing on June 17, 1983.

A hunter found her decomposed body in Shelby, New York, on Oct. 29, 1983, but she wasn’t identified until 2014. A cold-case investigator said her slaying was consistent with “Wilder’s method of operations.”

Brooksville teen's body found in New York

About 35 miles away, a body had been discovered four years earlier in Caledonia, New York, on Nov. 10, 1979. The teen was found shortly after her death but wasn’t identified until 2015 as Tammy Jo Alexander, 16, who had vanished from Brooksville, Florida, in 1979.

She had been wearing an Auto Sports Products jacket, a brand Wilder had been fond of. The .38-caliber bullet found beneath her could be used in .357-caliber revolvers, like one that Wilder used to kill himself.

2 teens vanish from Edison Mall in Fort Myers

Mary Opitz, 17, went missing in Fort Myers on Jan, 16, 1981. She was last seen leaving the Edison Mall on her way to the parking lot. 

Another girl who resembled Opitz, 18-year-old Mary Elizabeth Hare, disappeared about a month later on Feb. 11, 1981, from the same parking lot. Hare's body was found in June 1981 in a remote, undeveloped area of Lehigh Acres.

Cocoa Beach teen who had met Chris Wilder disappears in 1983

The last time Tammy Lynn Leppert, 18, of Rockledge was seen was on July 6, 1983, while she argued with a male friend. The friend was never considered a suspect in her disappearance.

But Wilder at one point was. Her mother sued him before he died in Concord, New Hampshire, on April 13, 1984, but dropped the suit afterward. Linda Curtis claimed Leppert, once a contestant in more than 300 beauty pageants, had met on the set of the movie "Spring Break" in Fort Lauderdale.

Curtis said he traveled to Brevard County in an attempt to convince Leppert to let him photograph her. Police were not able to link her to Wilder.

Holly Baltz is investigations editor at The Palm Beach Post. You can reach her at [email protected] .

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Hogan Backs Codifying Roe, Tacking Left on Abortion Ahead of a Tough Race

The former two-term Republican governor, who vetoed legislation in Maryland to expand abortion access, called himself “pro-choice” in an interview and said he would back a federal law to ensure access to the procedure.

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By Luke Broadwater

Reporting from Washington

Larry Hogan, the former two-term Republican governor of Maryland who this week won his party’s nomination for the state’s open Senate seat, said in an interview on Thursday that he supports legislation to codify abortion rights in federal law, describing himself as “pro-choice” in a remarkable pivot as he heads into a highly competitive race.

Mr. Hogan, who just two years ago vetoed a state law to expand abortion access in Maryland, also said he would vote to enshrine abortion rights in the state’s Constitution, a measure that will be on the ballot in November. He had previously declined to take a clear stance on either issue.

“I support restoring Roe as the law of the land,” Mr. Hogan said, referring to the now-overturned 1973 decision establishing abortion rights. “I’ll continue to protect the rights of women to make their own reproductive choices just like I did as governor for eight years. I think Marylanders know and trust that when I give them my word, I’m going to keep it, and I’ve protected these rights before. And I’ll do it again in the Senate by supporting a bipartisan compromise to restore Roe as the law of the land.”

Asked whether he viewed himself as “pro-life” or “pro-choice,” Mr. Hogan said, “Given the definition of what I’m supporting — women’s rights to make their own decision — I would say that’s pro-choice.”

It was a major tack to the left for Mr. Hogan, a Catholic who has long said his personal beliefs about abortion would not interfere with his stance that the issue is settled in state law. The move came as the former governor is heading into a challenging general election campaign in the solidly Democratic state of Maryland whose outcome could determine which party controls the Senate.

Democrats have made it clear that they plan to spotlight their party’s backing for abortion rights — and Republicans’ record of opposing access — as a central plank of their campaign for control of Congress, and they have already begun hammering Mr. Hogan on the issue. In 2022, he vetoed a bill to broaden abortion access in Maryland by allowing medical professionals other than physicians to perform them, which was enacted when the legislature overrode him .

“Larry Hogan has said he’s a ‘lifelong Republican’ and if he’s elected, he’ll give Republicans the majority they need to pass a national abortion ban,” Angela Alsobrooks, the Prince George’s County executive who won the Democratic nomination for the Senate race , warned in her victory speech on Tuesday. “He will not oppose anti-choice judges, including nominees to the U.S. Supreme Court — even in the wake of the reversal of Roe v. Wade.”

On Thursday, Mr. Hogan said that he would not support a national abortion ban, and would not use a judge’s prior rulings or views on abortion as a “litmus test” when deciding whether to confirm nominees made by the winner of the 2024 presidential election, whether that is President Biden or former President Donald J. Trump.

“I’ve never had a litmus test beyond a respect for the law and judicial temperament to make the right decisions, according to the law,” Mr. Hogan said. “I don’t think anybody should be gaming the system or having a litmus test on either side.”

A center-right Republican who has frequently criticized Mr. Trump, Mr. Hogan twice swept to victory in the governor’s race in deep-blue Maryland, winning over double-digit percentages of Democrats and independents. Senator Mitch McConnell of Kentucky, the minority leader, personally recruited him to run in a year when Democrats are already toiling to defend seats in conservative-leaning states as they grasp to maintain the majority, which they currently hold by just one seat.

Mr. Hogan has previously tried to distance himself from hard-line conservative positions on abortion. In 2019, he said he believed Roe v. Wade had been correctly decided . In his own primary victory speech on Tuesday night, Mr. Hogan assured female voters: “You have my word: I will continue to protect your right to make your own reproductive health decisions.”

Democrats were immediately skeptical. “If you believe that, I’d be happy to sell you the Key Bridge,” Brian Frosh, the state’s former attorney general, wrote on social media.

Mr. Hogan has ducked direct questions on the issue. Asked by Axios in March whether he would support codifying Roe, Mr. Hogan said only that it was something to consider. “It wasn’t a yes or a no,” he said, before laughing nervously.

Asked on Monday by The New York Times for his position on the matter, Mr. Hogan said, “It’s one of the things I’m sure we’ll be talking about over the next six months.”

Mr. Hogan’s decision to break with his party on abortion, coming less than 48 hours after he and Ms. Alsobrooks claimed their party’s respective nominations, appeared to be a calculated move to the left now that he is through the Republican primary. He would need large numbers of Mr. Biden’s supporters to cross party lines and vote for him to win the general election.

In response, Ms. Alsobrooks released a video showing clips of Mr. Hogan calling himself a “lifelong Republican” who would caucus with the G.O.P., equivocating on whether he supported federal protections for abortion rights and calling the topic “an emotional issue” for women.

“Larry Hogan has already shown us and told us he is not going to protect abortion rights,” Ms. Alsobrooks said in a social media post accompanying the video. “And the Republicans he’d be joining in the Senate have made their agenda crystal clear.”

Even with the announcement, Mr. Hogan still holds a more conservative position on abortion access than Ms. Alsobrooks, who has said she will cosponsor the Women’s Health Protection Act, a Democratic bill that would outlaw an array of abortion restrictions, on her first day in office.

The legislation would protect abortion access nationwide , going beyond simply codifying the protections in Roe and explicitly prohibiting a long list of abortion restrictions. Among them are some that were enacted by states after the landmark Supreme Court ruling was made that have severely limited access to the procedure.

Mr. Hogan said on Thursday that he did not support that bill because it would expand abortion rights beyond Roe. But he said his objection was more practical than ideological. For any bill to pass the Senate, it would almost certainly need the votes of centrist Republicans like Senators Susan Collins of Maine and Lisa Murkowski of Alaska, the party’s only two supporters of abortion rights in the chamber.

“I’ve always thought compromise is better, and I don’t think either party is going to be able to jam through their extreme positions,” Mr. Hogan said.

Senate Democrats tried and failed to advance their measure in 2022 after the leak of a draft opinion that revealed that the Supreme Court was on the brink of overturning Roe, which it did the next month . The bill failed to draw the 60 votes necessary to move forward.

Instead, Mr. Hogan said, he would work as part of a bipartisan coalition to come up with legislation that would protect the right to abortion before the fetus is viable, the standard that was national law until the Supreme Court overturned Roe. He said he believed a bill proposed by Ms. Collins was a “sensible” starting point for legislative discussions should he win election to the Senate.

That measure would outlaw any restriction that would put an “undue burden” on a woman’s right to obtain an abortion. It borrows language from the 1992 Supreme Court decision in Planned Parenthood v. Casey, which affirmed what it called the essential holding in Roe: that states may not prohibit abortions before fetal viability.

But Democrats and abortion rights advocates have dismissed Ms. Collins’s bill as toothless, noting that it lacks clear guidance about what states can and cannot do, and that it would not explicitly rule out abortion bans before a fetus is viable or bar any specific prohibitions on abortion methods.

Mr. Hogan also said he stood by his own veto of the Maryland abortion law, which he said at the time “endangers the health and lives of women.”

“Do we want to roll the clock back on an important medical procedure?” Mr. Hogan said in the interview. “I didn’t think people that weren’t licensed medical professionals should be doing it, and I still feel the same way.”

Jess Bidgood contributed reporting.

An earlier version of this article misstated the date of a veto of abortion legislation by former Gov. Larry Hogan of Maryland. It was in 2022, not 2002.

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Our Coverage of the 2024 Election

Presidential Race

President Biden has spent much of his time over the past week talking to Black voters, many of whom are now threatening to withhold their support. Read takeaways from recent events .

Biden and Donald Trump have agreed to two debates  on June 27 on CNN and Sept. 10 on ABC News, raising the likelihood of the earliest general-election debate  in modern history. Here’s how each of them might try to win the debates .

Trump’s search for a running mate is still in its early stages, but he is said to be leaning toward more experienced options  who can help the ticket without seizing his precious spotlight.

As Trump’s criminal trial winds down, a center-left group is trying to goad him into testifying through an ad . Trump instead is visiting Minnesota, where his campaign says it can broaden the electoral battlefield with a play for the state  that always disappoints Republicans.

A Remarkable Pivot:  Larry Hogan, the former two-term Republican governor of Maryland who won his party’s nomination for the state’s open Senate seat, said that he supports legislation to codify abortion rights  in federal law.

Gavin Newsom Accuses Trump:  The California governor, speaking at the Vatican, used sharp language to describe the former president’s  appeal to fossil fuel executives for campaign donations, calling it “open corruption.”

How Rich Candidates Burned Cash:  It is a time-honored tradition in U.S. politics: wealthy people burning through their fortunes  to ultimately lose an election.

Montana’s Senate Race:  Republicans are trying to paint Senator Jon Tester as a Washington sellout, while their own candidate, Tim Sheehy, faces scrutiny over his credibility and how he sustained a gunshot wound. It all comes down to the question of trust.