Christopher A. Whytock, Legal Origins, Functionalism, and the Future of Comparative Law, 2009 BYU L. Rev. 1879 (2009).
Functionalism is historically one of the most influential approaches to comparative law, and perhaps also the most controversial. This Article argues that legal origins scholarship – though produced primarily by economists, not legal scholars – has a close affinity with the functionalist approach to comparative law. 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.
This Article, contributed to a symposium on “Evaluating Legal Origins Theory,” draws out some of the implications of legal origins scholarship for the functionalism debate. It does 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; a need to rely on causal inference; and a need to consider the cultural, economic, political, and social context within which legal institutions exist. Among other things, the Article proposes a refined concept of “function” that distinguishes between the intended functions and actual consequences of legal institutions. The Article concludes that a new functionalism that combines a qualified embrace of the “better solutions” impulse with the refined concept of function, and that takes causal inference and contextual factors seriously, would have the potential to make valuable contributions to our understanding of law and to the improvement of legal institutions.