Comparative Evidence and Historical Explanation
Anyone who considers a legal problem in comparative perspective will usually start by collecting the solutions to that problem in his own and other legal systems. If he should find, for instance, a majority of those systems adopting one solution, or one approach, and only one or a few of them endorsing another, his own view may be swayed by the greater number.
In addition, he may try to develop an argument why the one solution is more reasonable, or more practicable, or rationally more convincing, or more in conformity with the needs of the business community than the other.[323] Such an argument will often be based on the comparative experiences of the various legal systems with the different solutions under consideration. Even this is, essentially, an enquiry of a historical nature. But it is not where the historical approach should end. Ultimately/ the mere juxtaposition of the comparative evidence, and experience, remains unsatisfactory.3' A better picture usually emerges on the basis of an investigation into the historical development of the modern rules. An example taken from German law will make this clear.2.
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