I. When Does a Drafter Use Comparative Research?

Comparison is an instrument used to falsify or verify the relationship between two phenomena. Within the realm of comparative study in the legislative process, when drafting legislation, the policy maker and the drafting team utilize foreign experiences as a means of falsifying or verifying the relationship between the policy choice under consideration and the results of the application of that policy choice elsewhere.Footnote ³ Objectives of such an exercise include law harmonization, law reform, promotion of economic and social change, search for solutions to specific problems in domestic law, bridging differences between legal systems in conflict areas, or the quest for perspectives on domestic law and theoretical norms.Footnote ⁴ In their quest for the best policy choice to counteract congestion in inner cities, drafting teams abroad consider the London Congestion Charge and utilize the British experience in the results produced by the application of the congestion zone in London. Their aim is to verify or falsify their initial assessment that the introduction of congestion charges eases congestion in inner cities. Verification of this assessment may lead to the transplant of congestion-charging zones as a policy choice, which in turn may lead to the transplant of the concept and the relevant UK legislation abroad.

In order to proceed with this transplant foreign drafting teams formulate a comparative research question which may be called a Transplant Question, by use of a comparative concept (the Transplant Concept) and a comparative research design (the Transplant Research Design).

II. The Formulation of the Transplant Question: Which Legal Systems Can be Used as Sources?

In current Western legislative practice, when faced with drafting instructions for new legislation, drafting teams tend to turn to countries whose legal system, language and legal tradition is familiar to their own, mainly as a means of assessing harmonization of the chosen solutions with international practice.Footnote ⁵ Thus, Western developed countries tend to opt for Miller's entrepreneurial or legitimacy-generating transplants.Footnote ⁶ In current developing countries, drafting teams tend to receive with great gratitude legislation offered (some would say imposed)Footnote ⁷ by foreign donors.Footnote ⁸ In other words they tend to opt either for Miller's cost-saving or for Miller's externally dictated transplants.Footnote ⁹ Leaving questions of ethics aside, one wonders how far away a drafting team can reach in order to trace a policy choice, a concept or a legislation that can be transplanted in part or in whole in the national legal order. Although the question relates mainly to drafting teams in the developing world as a means of stopping reception of inappropriate donor legislation often resulting from ad hoc consultancies, drafting teams in the developed world may benefit enormously from an understanding of transplanting mechanisms as a means of opening horizons to ignored legal systems within the current legal environment of increasing legal convergence.Footnote ¹⁰

A response to this question can be traced in the theories of comparative law, which, however, fail to provide a definite answer. Watson, the guru of transplants,Footnote ¹¹ claims that legal rules are equally at home in many places, that ‘whatever their historical origins may have been, rules of private law can survive without any close connection to any particular people, any particular period of time or any particular place’.Footnote ¹² Legrand,Footnote ¹³ Kahn FreundFootnote ¹⁴ and the SeidmansFootnote ¹⁵ object rather radically to the utility of legal transplants altogether.

Similarly, some comparatists argue that only convergent or similar systems can benefit from each others' experience. Like must be compared with like.Footnote ¹⁶ Like is defined as countries in the same evolutionary stage.Footnote ¹⁷ A larger group of contemporary comparatists support the view that only differences enhance our understanding of law in a given society.Footnote ¹⁸

Taking the middle ground on this debate Schlesinger points out that ‘to compare means to observe and to explain similarities as well as differences’. Thus, emphasis can be placed both on differences and on similarities. Periods of contractive comparison with emphasis on differences alternate with periods of integrative comparison with emphasis on similarities. Schlesinger concludes that the future belongs to integrative comparative law and puts forward the EU's ius commune as an example of integration of similar and different legal systems.Footnote ¹⁹

Jhering, Zweigert and KötzFootnote ²⁰ view the question of comparability through the relative prism of functionality.Footnote ²¹ ‘The reception of foreign legal institutions is not a matter of nationality, but of usefulness and need. No one bothers to fetch a thing from afar when he has one as good or better at home, but only a fool would refuse quinine just because it didn't grow in his back garden’.Footnote ²²

It is the theory of functionality that seems to serve drafting teams in the current period of integrative legal globalization, although currently the use of social analysis in legislation is minimal.Footnote ²³ In an era of tight parliamentary schedule where drafters are asked to produce bills at unprecedented speed, drafting teams must be afforded the luxury of seeking ready solutions with proven results elsewhere, in similar and different legal systems. In the current era of integrative legal globalization,Footnote ²⁴ characterized by transnational problems requesting urgent transnational solutions, integrative transnational approaches seem to be no longer a luxury but a realistic response. Trade in human organs, organized crime, terrorism and paedophilia cross national borders and therefore require a-national solutions. Borrowing methods applied elsewhere simply offers the drafting team the opportunity to propose and apply policy and legislative responses with unprecedented insight to the results produced. Does it really matter from where these responses are borrowed?

Not in principle. However, a qualifier to Watson's liberal approach can be introduced via Zweigert and Kotz's functionality theory. What matters when selecting a legal system for comparative examination in the process of legal transplantation is not the similarity of its characteristics with that of the receiving legal order, but the functionality of the proposal. If the policy, concept or legislation of a foreign legal system can serve the receiving system well, then the origin of the transplant is irrelevant to its success.Footnote ²⁵ As long as the transplant can serve the social need to be addressed, the transplant can work well in the new legal ground. In fact, it is this transfer of the transplant to national contexts that promotes indigenization of positive transplants as a block to indiscrete globalization and modern legal colonialism.Footnote ²⁶

Far from resolving the drafting team's problems, the qualifier of functionality demands an answer to a rather difficult question: what is the social need that the draft law addresses? In an ideal legislative process, which involves drafting instructions with the identification of the social problem to be addressed and a discussion of various solutions,Footnote ²⁷ the drafting team can immediately link the phenomenon to be addressed with the selected solution. In cases where the purpose of the original law is clearly explained in explanatory materials, the issue of functionality as a qualifier for compatibility can be easily resolved. However, legislative practice is not necessarily ideal. Often drafting instructions refer to the solution opted by policy makers rather than to the social need to be addressed. More often than not, the social need to be addressed is hidden and may only appear in explanatory materials, whose use is by no means wide.Footnote ²⁸ Under such circumstances the task of the drafting team to identify the underlying social need and to use it as a criterion of comparability and a safeguard for transplants seems rather intricate, especially if one takes into account the dominance of pure lawyers in drafting teams.Footnote ²⁹

III. The Formulation of the Transplant Concept

During the legislative process drafting teams can transplant policy options, concepts or legal texts. One would expect that the formulation of the Transplant Concept would only come into play in transplants of concepts. In other words, a legal system lacking legislation on money laundering or corruption may decide to borrow the concept from other legal systems, thus receiving the concept of money laundering or corruption from them. In this case the formulation of the Transplant Concept takes place when the exact details of the definition of each of the two offences/concepts are agreed upon by members of the drafting team. However, formulation of Transplant Concepts takes place in each and every type of transplant. Ultimately, in the process of borrowing from foreign legal systems drafted in foreign languages, the drafting team makes choices and decisions of inclusion or exclusion of foreign terms. This involves the intellectual process of selecting terms and concepts utilized elsewhere in the transplant process. The decision on whether the German legislation of Diebstahl is to be taken into account when drafting the English Theft Statute is such a choice. The aim of this choice is to create a generic comparative concept that the drafting team can utilize in order to conduct meaningful comparative analysis.

The first issue that one must address concerns the timing of the formulation of a Transplant Concept. There is a controversy between the well-known comparatists Constantinesco and Kokkini with regards to the timing of the use of comparison. Constantinesco states that common elements are present within several legal systems: these provide a common comparative denominator.Footnote ³⁰ In his opinion one can start to compare as many legal rules as one desires since sufficient relationships govern the selected rules of different legal systems. Constantinesco claims that legal rules provide their own comparability, at least in the initial phase of comparative research. According to Constantinesco, comparative concepts are useless in the initial phase of research.Footnote ³¹

Contrary to the views expressed by Constantinesco, Kokkini postulates the suitability of comparative concepts for direct use in the initial phase of comparative research. Comparative concepts are important since they prevent a waste of time in a later phase of research. Testing the comparability assumption must take place as soon as possible to exclude disappointments after visiting many libraries in different countries in order to study information which proves to be irrelevant because of the absence of comparability. According to Kokkini, comparative concepts serve as unequivocal starting points, which must be upheld in later phases of comparison.Footnote ³²

The truth of the matter, at least from the point of view of the legislative drafter, lies with both views. A transplant concept is necessary in the initial stages of research when the initial selection of policy choices, concepts or laws is being made. Kokkini's arguments on the utility of comparative concepts from the very first stages of legislative research are persuasive and indeed reflect reality in modern legislative processes. Kokkini is also right to state that comparative concepts are not completely formed at the initial stages of research. The formulation of the transplant concept continues in all stages of the drafting process.

ThorntonFootnote ³³ distinguishes five stages in the process of drafting:

1. (1) Understanding the proposal.

2. (2) Analysing the proposal.

3. (3) Designing the law.

4. (4) Composing and developing the draft.

5. (5) Verifying the draft.

The formulation of the Transplant concept begins with stage 2 and the analysis of the legislative proposal. It must be noted that the proposal or drafting instructions of stage 1 sent to the drafting team may include comparative analysis of policy choices, thus making initial preliminary assessments on possible concepts. However, comparative transplant concepts are truly formed from the drafting team. The latter makes choices of law rather than policy. These choices are revisited at each of the last four stages in the legislative process, with emphasis in stages 2 and 3. It is at these points in the legislative process that the drafting team attempts to formulate a generic legal concept which includes at least the minimum elements required for its semantic field. The application of Kokkini's theory is completed in the last stage of the process when the drafting team verifies that the choices made were indeed correct.

However, the formulation of a Transplant Concept requires complete research on the matter to be addressed and on the elements of the comparative concept to be used. It would be impossible for the drafting team to have this knowledge amassed before stage 4 of the legislative process. Thus, Constantinesco is also proven right, especially if one takes into account the necessity of detailed analysis not only in the laws of systems of origin but also in their jurisprudence, judicial and legal practices. These require time, comparative research of a high standard and also the compilation of all constituting parts of concepts of origin. Surely this cannot be part of the initial stages of the process.

Where does this leave the modern drafter? The formulation of the Generic Transplant Concept takes place in Kokkini's initial stages of the legislative process. The Generic Transplant Concept is formulated by juxtaposing all foreign national concepts considered relevant by the drafting team. There the drafting team attempts to agree on a concept which is general enough to include exclusively the elements sine qua non of the transplant concept. This involves an initial selection of relevant concepts from comparable legal systems, their intellectual analysis with reference to their legal and enforcement environment, and the classification of necessary and optional elements. On the basis of the necessary elements, a Generic Transplant Concept is formed. This is used in the legislative process as the basis for discussion. One could not conceive the generic concept of taking away life without actual loss of life. Note that the generic concept avoids reference to either murder or manslaughter.

In the process of drafting, however, a Concrete Transplant Concept is formed in the later stages. Research on the laws of origin allows the drafter to form a concrete idea on the elements of the national concepts of origin that are useful and appropriate for the national context of receipt. These are added to the Generic Transplant Concept. This leads to the completion of the transplant as a reception of foreign concepts to the national legal system of receipt.Footnote ³⁴ This is the stage where intent may be added in the generic concept of taking away life. This is where taking one's own life may be excluded. Inclusion or exclusion of foreign optional elements takes place on the basis of legal, political, cultural, historical and of course economic intricacies of the country of reception.

Having concluded that Transplant Concepts are formed as generic in the initial stages of the drafting process and as Concrete in the later stages of the process, we can now look at the types of Transplant Concepts that can be formed. Van Laer comes to the rescue with his three forms of comparative concepts: extensional concepts, functional concepts and immanent concepts.Footnote ³⁵

The formation of extensional concepts is the listing of common elements which may be present in several legal systems.Footnote ³⁶ Extensional concepts include common elements which can be traced in legal texts as applied in their legal, jurisprudential and constitutional environment at the national, regional and international levels. Extensional concepts refer to legal terms and their definition via subjective and objective elements, such as intent or factual elements. In order to demonstrate his thesis Van Laer uses as examples the German ‘Diebstahl’ and English ‘theft’: ‘Whoever takes moveable property not his own from another with the intention of unlawfully appropriating it to himself shall be punished …’.Footnote ³⁷ ‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.’ The first rule has been identified by the German legal term ‘Diebstahl’ and the second one by the term ‘theft’ in the English Theft Acts. Their subjective and objective common elements are identified through the juxtaposition of these rules. Thus, ‘property’ and ‘appropriation’ are common elements. ‘Unlawfully’ and ‘dishonestly’ are not common and are therefore excluded from the list of necessary elements for the extensional concept. What is the result of the comparative analysis of Diebstahl and theft? First, on the basis of their many common characteristics these are two concepts that refer to the same offence and can therefore be used in the analysis of the drafting team. Secondly, non-common elements can be excluded from the Transplant Concept under formulation as unnecessary. Thirdly, common elements are necessary elements in the Transplant Concept, unless proven otherwise.

From the description of extensional concepts it is evident that this type is ideal for the formulation of Generic Transplant Concepts that are formed in the initial stages of the legislative process. However, extensional concepts can be useful to the drafting team in the later stages of the drafting process for the formulation of the Concrete Transplant Concept: when discarding non-common elements of the concept, drafters acquire a list of optional elements which can be discussed, adopted or rejected in the formation of the Concrete Transplant Concept on the basis of legal and non-legal intricacies of the country of reception. Moreover, any legal system can be utilized in the comparison as the aim of the drafting team is to ensure that the Generic Transplant Concept used in their analysis includes the absolutely necessary elements. There is therefore an argument for the selection of prima facie different legal systems as a means of ensuring that elements identified as common are there due to their necessity in the concept as opposed to their commonness in familiar legal systems and contexts.

Van Laer relates the formation of functional concepts to social problems to which legal rules are a solution.Footnote ³⁸ Thus, the starting point for comparison lies not in legal rules and legal terms but in the sociological cause of the phenomenon to be addressed. Van Laer uses the examples of ‘full adoption’ and ‘limited adoption’ as functional concepts addressing the problems of neglected children. The roots of this category of concepts lies with Zweigert and Kötz, who regard a social function as the common perspective the researcher needs.Footnote ³⁹ They state that rules of different legal systems can be compared if they serve the same function.

Functional concepts bring us back to the issue of comparability of legal rules by revisiting the qualifier of the same social need. In other words, legal systems can borrow from one another irrespective of national intricacies, as long as they aim to address the same social problem. This perspective is external to the legal systems under comparison. Correspondingly, complete abstraction from national concepts must be achieved.Footnote ⁴⁰ Within the realm of interpretativeFootnote ⁴¹ functional concepts one can therefore address national intricacies via nationally devised innovative legal rules: in this case a transplant is considered counterproductive. However, regional or indeed international social phenomena can be successfully addressed by reference to foreign transplants either at the regional or the international level. This theory seems to support current legislative practice where legal solutions are sought, almost automatically, by reference to regional and international instruments. Thus, when exploring the introduction of money-laundering legislation in Greece, Greek drafting teams turned immediately to EU and UN instruments as a means of seeking inspiration for common solutions put forward. The other side of the coin when it comes to functional concepts refers to the rejection of ad hoc consultancies through the imposition of foreign legislation from donor organizations, a common occurrence in the developing world and a practice widely criticized as wrong and counterproductive.Footnote ⁴² There is little doubt that functional concepts present advantages.Footnote ⁴³ First, they look at the route of the regulation issue by addressing the problem that lies at the source of the request for national legislation. Secondly, they encourage the survey of all possible policy and legislative options for addressing the problem, ridding the drafter from prejudices of familiarity and convenience. Thus, they enable innovative choices of policy and law. Thirdly, they promote ideal legislative processes by ensuring that drafting instructions identify the social problem to be addressed, leaving the drafter to deal with the formulation of legal concepts. This last point leads us to the timing of functional concepts as ideal for the first stage of the legislative drafting process where policy makers draft drafting instructions.

There are drawbacks to functional concepts too. According to Constantinesco, Zweigert and Kötz, functional concepts are too broad and ill-defined as they refer to the hidden causal relation between legal rules and the resolution of a social problem: the social effect of legal rules is difficult to determine, however, so in most cases Zweigert and Kötz's functional concepts have no empirical use. There is an element of truth in Constantinesco's approach. Indeed, functional concepts require identification of the social need to be addressed and analysis of possible legal and non-legal solutions. Both elements refer to causationFootnote ⁴⁴ and, in view of their correlational and probabilistic elements,Footnote ⁴⁵ they are impossible for a legal expert to address. Thus, functional concepts in the hands of lawyers/legislative drafters are indeed useless or even dangerous;Footnote ⁴⁶ hence the rarity of current examples in the drafting process per se.Footnote ⁴⁷ The question is whether functional concepts are indeed made for the exclusive use of legal experts. My view is that this is not the case. Functional concepts address the underlying social phenomenon as identified by policy makers whose task, supported by their multi-disciplinary qualifications, is to find answers to society's or the electorate's needs. As a result, in the first stage of the drafting process, and much more so in the first stages of the policy process, functional concepts have an important role to play. After all, law reform is not exclusively in the hands of lawyers: far from it; modern legal drafting requires multi-disciplinarity of approach as a means of ensuring that society's demands are addressed,Footnote ⁴⁸ where possible, without resource to legislation. In fact, the use of functional concepts in modern legislative practice has led to the realisation of Law Reform Commissions around the world that employment of non-lawyers benefits the Commission markedly. One could argue therefore that the transplant process begins with the formation of a functional transplant concept which is then transplanted by drafters to a Generic and later Concrete Extensional Concept. This seems to reflect the current practice of the Parliamentary Counsel's Office in Whitehall, which does not accept legal drafts and applies pressure on client departments to identify the reason for requesting a legislative response and its possible solutions. In fact, it is on the basis of this short analysis that requests from government departments are prioritized by the Cabinet Office in the UK.

Eltzbacher's immanent concepts occur as a result of generic legal concepts, as the concept of adoption. They are purely non-functional concepts without reference to social problems.Footnote ⁴⁹ They refer to a comparison between elements of legal definitions. They are non-extensional as the criterion for the classification of an element as necessary is undertaken on the basis of its national character. As a result, immanent concepts can only serve transplants if they are set against a familiar environment of common concepts and elements. Immanent concepts could theoretically work well within the EU in fields where initial harmonization has already taken place. Through the deduction of national intricacies from the equation the generic immanent concept can be formed.

Immanent concepts can be used instead of extensional concepts if transplants from legal systems with common characteristics are under consideration. They present the same characteristics as extensional concepts and are therefore useful in the later stages of the legislative process. They are often used when time is of essence but they deprive the drafting team of the wealth of innovative solutions that can be identified through analysis of legal systems further afield. However, they can be ideal if the generic functional concept led to national concepts of similar legal systems with minor differences in elements and application. In fact, they are ideal in demonstrating the state of harmonization in the legal systems of a region or an international organization.

It is therefore suggested that functional concepts must be used as Generic Transplant Concepts in the initial stages of the policy and drafting processes, followed by intentional or immanent Concrete Concepts at later stages. Functional concepts present inherent problems of terminology buildingFootnote ⁵⁰ and are therefore unsuitable for the later stage of analysis. The choice between extensional and immanent concept is undertaken on the basis of the extent of innovation sought in the selected solutions and on the basis of the level of harmonization and similarity of the legal systems under comparison.

However, one must not ignore the issue of concept choices when it comes to the selection of the term to be used for Transplant Concepts. Sartori's ten commandments for concept analysis can be utilized here.Footnote ⁵¹

Sartori's Ten Commandments for Concept Analysis

Sartori's work has been criticized as traditional and therefore strictly bound to conventional conceptual thinking.Footnote ⁵² However, his ten commandments can serve as a good, albeit at times fuzzy, guide to drafters in the formulation of the Transplant Concept. It is not surprising to note that Sartori's calls for unambiguity and precision can be traced in modern legislative drafting theory, albeit at the stage of drafting (in its narrow sense) rather than conceptualizing.Footnote ⁵³

IV. The Formulation of a Transplant Comparative Research Design

Having established comparability between the legal systems chosen for analysis, and having selected the Transplant Concept and the Transplant Term, the drafting team is ready to proceed with the formulation of a Transplant Comparative Research Design.

A Research Design implies the proper choice of cases, the types of indicators and the mode of analysis that is needed to provide a proper answer to the Research Question asked. In order to achieve this, the Research Design must be externally and internally valid.Footnote ⁵⁴ Internal validity concerns the question whether the facts used in a given research project are properly, correctly optionalized within the framework of the research in question. Thus, when comparing the benefits for the unemployed in three different countries, it is important to compare countries with similar welfare systems. Otherwise, any results produced would be internally invalid (if one country offers free housing and another does not, this difference should be taken into account when evaluating the unemployment benefits in these countries). External validity presupposes that the concepts used in a given research and the relevant outcomes apply not only to the cases under review but to all similar cases that satisfy the conditions set in the Transplant Research Question and related Transplant Research Design. Thus, the results of a project on the causes of increased crime within urban areas must apply not only to the countries analysed in the research but also to all similar areas. Internal and external validity are interrelated. They must be seen as a goal which, however, is rarely achieved in practice.

External and internal validity is the main guarantee for a Research Design which is valid, reliable and plausible. This is what comparative research method aims to achieve. But how? The main tool for comparative analysis is the use of case studies.Footnote ⁵⁵ To conduct a case study is to investigate something which has significance beyond its boundaries. In contrast to cases, which have significance within their own legal system only, case studies can be used as the basis of an argument or conclusion which may apply in more than one legal system.Footnote ⁵⁶ Thus, using the Child Support Agency as a case study involves examining an institution which, due to its originality, may be the source of action in other jurisdictions.Footnote ⁵⁷

There are five types of case studies: representative, prototypical, deviant, crucial and archetypal.Footnote ⁵⁸ Representative is the most common form of case study and they involve the examination of a typical and standard example of a wider category. Thus, the status of measures wrongfully un-notified to the Commission can be viewed as a representative case study for judicial activism in the 1990s.Footnote ⁵⁹ Representative cases are often used to collect information on the level of harmonization of the national laws of the Member States.Footnote ⁶⁰

Prototypical are cases which are expected to become representative: many EU lawyers study the development of the Federal Court of the US as a means of interpreting the activism of the European Court of Justice.Footnote ⁶¹ Prototypical cases are often used as a means of foreseeing how another phenomenon may evolve. However, they are rather risky as other parameters may not allow a development similar to the prototype. Although this mistake in research could be catastrophic for the researcher, lessons can be learnt from other researchers who may even attempt to understand which factor(s) led to the variation in the result of the initial research.

Deviant cases involve the examination of the exceptional and untypical. Thus, it is interesting to examine the administrative courts of France, Italy and Greece as a means of identifying possible additional hurdles and advantages for the protection of individuals seeking damages for State liability.Footnote ⁶² Deviant cases often lead to conclusions on why the deviation exists and on the possibility of transplantation of this deviant phenomenon in other legal systems.

Crucial cases are used in order to verify whether a theory is valid when conditions are least favourable to validity.Footnote ⁶³ It is rarely used in law, but it may occur when, for example, a researcher wishes to verify that the theory of legislative State liability is indeed gaining ground by analysing the receding resistance of the notoriously defiant Greek Council of the State and the Italian Cassation Court.Footnote ⁶⁴

Archetypal cases involve the examination of cases which, although they were initially considered representative, develop as a leader in their category. The French Civil Code was initially seen as one of the codes in civil law countries. However, having been copied by a number of civilian legal systems (such as the Italian and the Greek systems), it has become archetypal.Footnote ⁶⁵ What is important to remember about archetypal cases is that they can be used as a point of reference for the interpretation of the phenomena which they bear, but they cannot be used as a means of testing a theory.

How can the drafting team ensure that the correct type of case study has been selected? It must be accepted that the classification of phenomena under one type of case study or another is primarily a subjective choice of the team. Whether it is the French or German Civil Codes that one can use as a representative case study of civil law jurisdiction in private law, must be decided internally in the drafting team. Thus, the use of case studies carries an inherent danger of subjectivity. Similarly, whether the French Civil Code is a representative or prototypical case study is a matter of opinion within the drafting team whose assessment is mainly subjective. Nonetheless, the level of expertise in national and foreign laws within the drafting team can guarantee some degree of objectivity in inevitably unilateral assessments.

What is crucially important for the drafter at this stage is to ensure that each case study selected is used to draw appropriate conclusions. Thus, case studies in the legislative drafting process can only be undertaken via Flyvbjerg's information-oriented selection.Footnote ⁶⁶ Representative case studies are the most common forms used and they may lead to legitimate conclusions on solutions offeredFootnote ⁶⁷ by a large group of legal systems represented by the case study. Thus, one can assume that gender equality in family law and succession to the extent offered by the French Civil Code prevails in most civil law European jurisdictions. Thus, the choice to award similar levels of equality domestically would be rather wise. Archetypal case studies can offer the drafting team a higher level of security in the soundness of the solutions borrowed, as their choice has been followed by the leader in the group and has been established in the group to which they belong. Prototypical case studies involve an extra element of subjectivism as their evolution to case studies prevalent in their group lies with the future. Here assistance from multidisciplinary sources is of immense assistance when securing that choices and solutions borrowed by that case study will fall in line with others in the group in the future. Irrespective of the classification of a case study as representative, archetypal or prototypical, at the end of the day what matters is their common utility to drafters: they can serve as sources of policy choices, concepts and legislative options. They can be used freely as models,Footnote ⁶⁸ in varying degrees, provided of course that they belong in the same group as the receiving country.

In contrast to them, deviant and crucial case studies must be used with extreme caution. They are there to offer the drafter a contrast for analysis as a possible means of verifying initial conclusions. Deviant case studies can be extremely helpful when the drafting team is faced with a problem where the current domestic solution in not working: by looking at deviant case studies drafters can acquire new, innovative, often extreme ideas about possible fresh solutions. Moreover, deviant case studies offer welcome confidence to the initial conclusions.Footnote ⁶⁹

Crucial case studies tend to be difficult to use in the context of legislative drafting. Since the aim of the team is to regulate, testing the selected regulation option against the worst possible scenario can only be perceived when the worst possible scenario can be so detrimental that it has to be considered in detail.