Legal Origins, Functionalism, and the Future of Comparative Law

I. INTRODUCTION Functionalism is historically one of the most influential approaches to the study of comparative law,1 and perhaps the most controversial.2 According to functionalism, comparative legal scholars should understand different countries' laws as solutions to similar social problems.3 As Ralf Michaels argues, "The functional method has become both the mantra and the bete noire of comparative law. For its proponents, functionalism offers the most, perhaps the only, fruitful method; to its opponents, it represents everything bad about mainstream comparative law."4 Some leading comparative legal scholars claim that functionalism is "compromised" and suffering from "exhaustion," and that new approaches to comparative law are needed.5 Others argue that "a more methodologically aware functionalism will provide us with better insights into the functioning of law," and that further functionalist efforts would therefore be "well worth the effort." 6 In this Article, I argue that legal origins scholarship - though produced primarily by economists, not legal scholars - has a close affinity with functionalist comparative law.7 As such, legal origins scholarship puts into relief the promises and perils, the strengths and weaknesses, of functionalism. Legal origins scholarship therefore deserves the careful and critical attention of comparative legal scholars as they deliberate over the place of functionalism in their field's future. To that end, I attempt to draw out some of the implications of legal origins scholarship for the functionalism debate. I do so by focusing on three characteristics shared by legal origins scholarship and functionalist comparative legal scholarship: a quest for better legal solutions to societal problems (Part II); a need to rely on causal inference (Part III); and a need to consider the cultural, economic, political, and social context within which legal institutions exist (Part IV).8 The raw material for my analysis is Konrad Zweigert's and Hein Kotz's classic statement of the functionalist method in their Introduction to Comparative Law,9 and the work of four leading legal origins scholars: Rafael La Porta, Florencio Lopezde-Silanes, Andrei Shleifer, and Robert Vishney.10 1 will also draw on John Ohnesorge's11 and Daniel Sokol's12 contributions to this symposium. By focusing only on the three themes of better solutions, causal inference, and law's context, I do not purport to provide a thorough critique of either functionalism or legal origins scholarship - excellent critical reviews of both bodies of scholarship can be found elsewhere.13 However, I do attempt to develop the following claim: that comparative legal scholars should build upon their field's functionalist heritage by giving functionalism's "better solutions" impulse a qualified embrace, by systematically addressing the task of causal inference that is a necessary part of functional analysis,14 and by taking law's context seriously. I also hope to expand upon one of the core questions raised by Professor Ohnesorge - what can comparative legal scholars and legal origins scholars learn from each other?15 Finally, I hope to contribute to legal origins scholarship in a critical yet constructive way by applying to it some of comparative legal scholars' leading criticisms of functionalism. II. BETTER SOLUTIONS Perhaps the most widely criticized characteristic of the functional method of comparative law is its emphasis on the improvement of legal solutions to social problems. This so-called "better solutions" impulse16 flows from the principle of functionality, which is the foundation of functionalism as expounded by Zweigert and Kotz. Zweigert and Kotz assert that "the legal system of every society faces essentially the same problems"17 and argue that the object of comparison should be diverse legal solutions to those societal problems.18 Thus, functionalist analysis involves two preliminary steps: problem definition and solution identification. …