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Jogösszehasonlítás: tudományelméleti és tudománytörténeti töredékek. (Fragments of a Theory and a History of Comparative Law)
Állam- és Jogtudomány (2007)
  • Balázs Fekete
Abstract

The present study consists of three main parts. The first part analyzes certain theoretical questions of comparative law by using the concept of paradigm coined by Thomas Kuhn. The author argues that this concept can be applied to the understanding of the history of comparative law, altough it needs some refinement. Due to the very nature of the objects of social sciences there is no such an opportunity to precisely distinguish paradigms from each other in time as it can be done in natural sciences. It is argued that existence of parallel paradigms should be recognized, and this insight can really facilitate the research of the history of comparative law. Moreover, Kuhn’s differentiation between the period prior to the first paradigm and the emergence of the first scientific paradigm might also be regarded as a useful insight for the better comprehension of this history. The second part of the study draws a distinction between the period prior to the first paradigm (from the 17th century to the first half of the 19th century) and the emergence of the first paradigm of modern comparative law (the second half of the 19th century). The first period is characterized by the divergent use of comparative method in jurisprudence and the manifest lack of common conceptual bases. According to the conclusion of this part the authors of this age, Bacon, Selden, Grotius, Leibniz, Montesquieu, Vico, Gans and Feuerbach can be regarded as eminent forerunners of comparative law, but one cannot consider them as modern comparatists. The third part explains that the first real paradigm of comparative law was born in the second half of the 19th century. This is the historical-evolutionist paradigm of comparative law which was mainly represented by English and German authors such as Maine, Pollock, Bryce, Vinogradoff, Post, Bernhöft and Kohler. Under different titles, as for instance Historical Jurisprudence, ethnologische Jurisprudenz or Universalrechtgeschichte, the authors were working by applying the same theoretical principles. The main principle of this approach was the hypothesis that the evolution of legal development can be identified and this process has its own phases. Therefore, all research should be historical and comparative at the same time. Finally, the study argues that Giorgio del Vecchio, even if he was working in the 20th century, should also be regarded as a representative of this paradigm since his concept of comparative law shared all the aforementioned assumptions.

Keywords
  • jogösszehasonlítás,
  • paradigma,
  • comparative law,
  • paradigm
Disciplines
Publication Date
2007
Citation Information
Balázs Fekete. "Jogösszehasonlítás: tudományelméleti és tudománytörténeti töredékek. (Fragments of a Theory and a History of Comparative Law)" Állam- és Jogtudomány Vol. 48 Iss. 4 (2007)
Available at: http://works.bepress.com/balazs_fekete/4/