The two main approaches to the use of the comparative method in legal research, functional and cultural, have some "predetermined" considerations regarding the results that will (or should) be discovered by comparing various legal phenomena — should the emphasis be on similarities or differences between these phenomena. These considerations are based on the vision of, respectively, the universal or pluralistic nature of law of various societies, and in fact they are able to correct substantially the process of cognition of legal phenomena using the comparative method, adjusting it to the desired result. In the case of similarities, we can talk about artificially narrowing the circle of countries under investigation. In the case of differences, the isolation of systems and the uniqueness of their cultural characteristics are unreasonably exaggerated. The alternative assumptions presented in the theory of comparative law regarding the existence of universal principles of law or the fundamental uniqueness of each legal system require a critical rethinking of constitutional provisions and practice in comparative studies. The use of the comparative method in constitutional law is not reducible to the implementation of the ideas of political philosophy, and objective conclusions should not be replaced by predetermined normative guidelines. The similarities and differences revealed by the researcher of constitutional ideas, norms and practices can be considered as a result of comparison of independent value.Constitutional law is associated with a variety of substantial constructs existing in the world, not excluding, however, their intercommunication. Understanding these constructions requires attention to both the similarities and the differences in specific legal orders (as well as the reasons for their functioning in this, and not another form). The use of the comparative method in the absence of striving for predetermined results is simultaneously aimed at understanding the laws of development of constitutional institutions and maintaining the horizon of their diversity as an important component of this development. Each time, the researcher should distance himself from his prejudices regarding the similarities or differences between the institutes under study, rechecking whether the obtained results are really the results of applying the comparative method, and not the initial constructions.The logic of a comparative study corresponds to the construction of theories of "middle level", aimed at forming the theoretical model of a particular legal in-stitution, taking into account the practice of implementing this institution in specific states. The focus on middle-level theories within the framework of the comparative method allows one to go beyond the description of single systems, formulate conclusions at the level of generalization that ensure the comparability of the studied objects, and at the same time maintain an understanding of the diversity of constitutional models.
Legal translation and “traditional” comparative law – Similarities and differences
