Variety and Uniformity in the Treatment of the Good-Faith Purchaser

Abstract

THE study of legal rules and institutions on a comparative basis has long been one of the staples of legal scholarship. Much of the necessary work of comparative law consists of cataloging the ways in which legal systems approach the problems and conflicts that reappear in different societies. This process of identifying differences and similarities in legal rules is, however, only the first stage in a comparative analysis. The present essay focuses on the second stage, that is, the explanation of why both differences and similarities emerge even in legal systems that are remote from one another in time and space. The ability of comparativists to explain and among the rules of different legal systems has been handicapped by a scholarly tradition in which functional explanations play only a small part. To be sure, certain obvious constants are widely understood in functional terms. The uniform punishment of murderers (and the relatively uniform definitions of murder) in different societies, for example, will almost universally be explained as, at least partly, a response to a functional imperative, the need to deter such behavior. But for the most part, uniformity is seen as the product of direct borrowing or common inheritance, while variety is often thought to reflect differences in historical or cultural experiences.' These impressions are, however, rarely tested in systematic