21
section. Second, he has not only studied the political
system of Pakistan but is
qualified to practise as a lawyer in that jurisdiction,
providing a useful insider
insight into not only the political system, but the functioning of the political system
in that country.
There are limits to comparativism.
68
Usually there is a risk that the lawyer
attempting the comparison lacks a deep level of knowledge
of culture specific
concepts in one of the jurisdictions being studied and, as a result, has a 'culture
deficit'.
69
This limitation has already been addressed in 2.3 whilst exploring the
position of the researcher as insider and outsider.
The researcher proposes a completely different political system, in order to address
an on-going issue of political instability. With such a proposition, the researcher is
aware of the fact that a thorough knowledge of the
systems to be compared is
required. It is a calculated risk that, if the two systems 'are socio-culturally and
legal-culturally diverse, then more problems are likely to be encountered'.
70
Through a functional-institutional approach, an institution
is highlighted to a
comparable equation of two objects, then the next step is to determine '[h]ow is a
specific social or legal problem, encountered both
in society A and society B,
resolved?'
71
This is to be achieved through a problem-solving approach. For
instance, how is the issue of democratic federalism implemented in both countries?
Schmitthoff argues that, 'the fact that the problem is one and the same warrants
the comparability'.
72
In this thesis the 'problem' Schmitthoff refers to is interpreted
and used as the subject of the comparative exercise, i.e. post-colonial history and
similar state structure.
With the help of the comparative law approach, the legal rules and patterns of a
given polity are understood.
73
Whilst maintaining an impartial stance it is equally
essential to understand a foreign culture, since its law really cannot be understood
without this.
74
For example, in order to understand the US political system, it is
68
Esin Orucu, 'Methodological Aspects of Comparative Law' (2006) 8(1) European Journal of Law
Reform 29, 40.
69
ibid.
70
ibid 32.
71
ibid 33.
72
M Schmitthoff, 'The Science of Comparative Law' (1939) 7(1) The Cambridge Law Journal 94, 96.
73
Edward Eberle, 'The Method and Role of Comparative Law' (2009) 8(3) Washington University
Global Studies Law Review 451.
74
ibid 458.
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necessary to understand the influence of the Enlightenment on Republicanism on
US constitutional law. This is discussed in Chapter 3.
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