The Functional Method of Comparative Law

The functional method has become both the mantra and the bete noire of contemporary comparative law. The debate over the functional method is the focal point of almost all discussions about the field of comparative law as a whole, about centers and peripheries of scholarly projects and interests, about mainstream and avant-garde, about ethnocentrism and orientalism, about convergence and pluralism, about technocratic instrumentalism and cultural awareness, etc. Not surprisingly, this functional method is a chimera, both as theory and as practice of comparative law. In fact, the functional method is a trifold misnomer: There is not one ( the ) functional method but many, not all methods so called are functional at all, and some projects claiming adherence to it do not even follow any recognizable method. This paper first places the functional method in a historical and interdisciplinary context, in order to see its connections with, and peculiarities opposed to, the debates about functionalism in other disciplines. Second, it tries to use the functionalist method on the method itself, in order to determine how functional it is. This makes it necessary to place functionalism within a larger framework -- not within the development of comparative law, but instead within the rise and fall of functionalism in other disciplines, especially the social sciences. Thirdly, the comparison with functionalism in other disciplines enables us to see what is special about functionalism in comparative law, and why what would in other disciplines rightly be regarded as methodological shortcomings may in fact be fruitful for comparative law. This analysis leads to surprising results. Generally, one assumes that the strength of the functional method lies in its emphasis on similarities, its aspirations towards evaluation and unification of law. Actually, the functional method emphasizes difference, it does not give us criteria for evaluation, and it provides powerful arguments against unification. Further, one generally assumes that the functional method does not account sufficiently for culture and is reductionist. However, the functional method not only requires us to look at culture, but also enables us, better than other methods, to formulate general laws without having to abstract from the specificities. The problem is that the functional method, as generally described, combines a number of different concepts of function: an evolutionary concept, a structural concept, a concept focusing on equivalence. The relation between these different concepts within the method is unclear, its aspirations therefore unrealistic. If we reconstruct the method plainly on the basis of functional equivalence as the most robust of the three concepts of function and emphasize an interpretative as opposed to a scientific approach, we realize that the functional method can make less claims, but at the same time is less open to some of the critique voiced against it. In short, the functional method is strong as a tool for understanding, comparing, and critiquing different laws, but a weak tool for evaluating and unifying laws. It helps us in tolerating and critiqueing foreign law, it helps us less in critiquing our own

The Method and Role of Comparative Law

Part II will lay out the methodology of comparative law. My proposal for comparative methodology consists of these steps: Step 1 calls for acquiring the skills of a comparativist. These skills require immersion in the culture under review, linguistic knowledge, and the application of neutral, objective evaluative skills. Step 2 requires the application of these comparative skills to evaluate the external law, which consists of the law as written or stated. Here we must do a close assessment of the similarities and differences of the laws of different countries under review. Step 3 involves applying that same methodology to the internal law, a level of law that lies beneath external law yet has important influences on the formation of law. Finally, in Step 4 the results of comparative investigation are assembled in order to determine what we can learn from the foreign legal system and how that insight might reflect on our own legal system. Part III will then turn to describing and outlining the mission of comparative law. Here the focus will be on employing comparative law methodology to help gain insight into the laws of non- Western countries and solve pressing public policy questions

The functional and the dysfunctional in the comparative method of law: some critical remarks

This contribution explores the leading principle in the comparative method of law: functionality of comparisons. The principle is defined, conditioned and analysed. In particular, the author wishes to maintain with this article the orthodox approach when it comes to understanding the principle of functionality for the comparative method. The article’s analysis proceeds with an examination of whether functionality is concerned with similarities and/or differences. The author suggests that it is possible that functionality can operate for the identification of differences and the identification of similarities, the stress being on the latter. The article then argues that functionality serves as a common, unifying and mutually intelligible denominator amongst comparative lawyers around the world, even though not necessarily in a dogmatic fashion. Furthermore, the author of this contribution notes the evolution of the principle in question, its strengths as well as its main criticisms, which are also presented herein. The article concludes that functionality remains the epicentre of the comparative method of law and that its drawbacks remind us that the principle is susceptible to further refinement in the future

Monte Carlo computation of optimal portfolios in complete markets

We introduce a method that relies exclusively on Monte Carlo simulation in order to compute numerically optimal portfolio values for utility maximization problems. Our method is quite general and only requires complete markets and knowledge of the dynamics of the security processes. It can be applied regardless of the number of factors and of whether the agent derives utility from intertemporal consumption, terminal wealth or both. We also perform some comparative statics analysis. Our comparative statics show that risk aversion has by far the greatest influence on the value of the optimal portfolio

Density Functional Theory versus the Hartree Fock Method: Comparative Assessment

We compare two different approaches to investigations of many-electron systems. The first is the Hartree-Fock (HF) method and the second is the Density Functional Theory (DFT). Overview of the main features and peculiar properties of the HF method are presented. A way to realize the HF method within the Kohn-Sham (KS) approach of the DFT is discussed. We show that this is impossible without including a specific correlation energy, which is defined by the difference between the sum of the kinetic and exchange energies of a system considered within KS and HF, respectively. It is the nonlocal exchange potential entering the HF equations that generates this correlation energy. We show that the total correlation energy of a finite electron system, which has to include this correlation energy, cannot be obtained from considerations of uniform electron systems. The single-particle excitation spectrum of many-electron systems is related to the eigenvalues of the corresponding KS equations. We demonstrate that this spectrum does not coincide in general with the eigenvalues of KS or HF equations.Comment: 16 pages, Revtex, no figure

Over a Decade of Comparative Risk Analysis: A Review of the Human Health Rankings

The author reviews a method for undertaking a cross-project comparison of comparative risk analyses to understand which environmental problem areas have been cited most as often posing the severest risks

Network Reconstruction with Realistic Models

We extend a recently proposed gradient-matching method for inferring interactions in complex systems described by differential equations in various respects: improved gradient inference, evaluation of the influence of the prior on kinetic parameters, comparative evaluation of two model selection paradigms: marginal likelihood versus DIC (divergence information criterion), comparative evaluation of different numerical procedures for computing the marginal likelihood, extension of the methodology from protein phosphorylation to transcriptional regulation, based on a realistic simulation of the underlying molecular processes with Markov jump processes