Comparative Law beyond the Trap of Western Positivism

The cultural sway of mainstream legal positivism may often drive the comparative scholar off the track, in search of what is most glimmering, most practically useful, or better understandable to the audience that they target as their own. In the latter perspective, the core study of the legal data expressing permanence, resistance and change ends up being conducted as if these were phenomena stemming only from authoritative choices; in other words, that study is made dependent on the solutions given only by legislators and judges – reaching out to scholars’ discussions only when necessary. What underpins this working method is the idea that all the legal actors operate in a one-to-one correspondence with the values and the legal culture of the whole of, or the vast majority of, the members of the societies concerned. Consequently, the arrangement of similarities and differences across the legal systems, and even the classification of these systems, may be safely shaped according to what is said and done by the ‘official’ legal actors.