Functional Comparative Law- Germany vs. USA
Chapter 2 Preparatory Country Report
A. Choosing the Appropriate Reference Country
The selection of legal systems that are to be compared is limited due to the skills of the comparatist. Examining a foreign legal system requires a base of knowledge “in all the important aspects of comparison that make up being a comparative lawyer”173: the respective foreign language, the legal culture, and an awareness of the mindset of the foreign society in order to capture the effects and consequences of legal rules. It is therefore beneficial if time is spent immersed in the respective legal culture and society in order to get the full sense and the substantial meaning of a legal rule to be able to properly translate law from one language to another.
Since potential language and cultural barriers are surmountable, the selection of a foreign legal system ultimately depends on the personal interest and the aim of the comparatist, who for logical reasons, will choose a foreign legal system in which he assumes to find answers for his specific legal research question. Aimless comparing of non-selective legal systems is a time-consuming task, with a chance of creating useless knowledge for the matter of cause174.
If legal enhancement is the aim, it may be helpful to choose a basis of comparison which, at least at first sight, seems ahead of one’s own legal system or holds a leading role regarding the examined subject. For the examination of legal solutions to the phenomenon “hate crime...