3. Comparison is a mental process where two or more different
objects are examined to determine their possible relationships.
It involves the composition of different objects in one’s
conscience so that human intelligence, when moving from one
object to the other, finds them to be identical, similar or
opposite.
Law is the raw material of comparative law.
It is understood more broadly as that academic discipline that
deals with the diversity and plurality of legal systems.
It involves the study of different legal systems in existence in the
World such as the Civil law, Common law, Canon law, Hindu law
etc.
4. In the strict sense, it is the theoretical study of legal systems by
comparison with each other.
More specifically, it involves the study of the different legal
"systems” (or "families") in existence in the world. It includes the
description and analysis of foreign legal systems, even where no
explicit comparison is undertaken.
In this context, the comparative method as a method of legal
science, is designed to perform certain cognitive tasks:
to identify the similarities and differences between two or
more legal systems, or rules or institutions thereof, and
to elucidate the factors on the basis of which these
similarities and differences can be explained.
5. Comparative Law denotes
A method of study and research and not a distinct branch or
department of law
- If by law we mean a body of rules, it is obvious that there can
be no such thing as comparative law,
- The process of comparing rules of law taken from different
systems does not result in the formulation of any independent
rules for the regulation of human relationships or transact.
By use of this method it becomes possible to make observations and
to gain insight which would be denied to one who limits his study to
law of single country.
6. Comparative
Law
Comparative
Jurisprudence
Comparative
Legislation
is an expression of
the belief that the
main purpose of
comparison is to aid
the historian or jurist
in tracing the origin
and development of
concepts common to
all systems of law.
is in the nature of a
subterfuge i.e. a
deception, seems to
have been devised in
order to emphasise
the practical as
opposed to the
academic aspects of
comparative legal
research
7. Comparative
Legislation
stresses two features of the results which
may be obtained by the use of the
comparative method
the collection and
distribution of
information as to the
foreign law
the utilization of the
experience gained in
other systems of law
reform.
8. It is understood more broadly as that academic discipline that deals with
the diversity and plurality of legal systems. This encompasses three strands.
Comparison
• of legal rules and
orders of
different legal
systems, including
the recognition,
explanation and
evaluation of
similarities and
differences, and,
if desired, the
determination of
the better law.
Analysing
• the mutual
interactions and
influences
between legal
orders.
Development
• of a general
understanding of
law and legal
theory on the
basis of individual
legal phenomena.
9. HC Gutteridge, the doyen of the discipline dismisses the question of
defining comparative law - since the subject matter is non-existent,
it defies definition.
The phrase is employed to describe a process or method by which
two or more legal systems or parts thereof are compared with a
definite aim.
The definitions which have been framed do not deal with the nature
of comparative law but only its objects.
Holland – Comparative Law collects and tabulates the legal
institutions of various countries and from the result thus prepared,
the abstract science of jurisprudence is enabled to set forth an
orderly view of the ideas and the methods which have been
variously realised in actual systems.
10. Maine – the chief function of comparative jurisprudence is to
facilitate legislation and the practical improvement of law.
Rheinstein – the term should be reserved to demonstrate those
kinds of scientific treatment of law which go beyond the taxonomic
or analytical description of technical application of one or more
systems of positive law.
Ihering – legal science without comparison could scarcely rise above
the level of provincial casuistry and empirical craft.
11. The guiding factor for the comparatist in his investigations should not
be a ‘what’ but a ‘why’. He should concern himself with the why of
the existence of divergencies of jurisprudence and the reason for it.
Thus, if you compare the entire German and the US legal system, you do a
macro-level comparison. If, on the other hand, you are interested in a
juxtaposition of the way’s contracts are made in the United States and
Germany respectively, you would compare the two laws on a micro-level.
Comparative Legal Studies
macro-level
comparison
micro-level
comparison
comparison of two or more
legal systems as a whole
the analysis of a specific legal
issue and how it is treated in
two or more legal systems
12. The macro-micro-level distinction, however, is only a cursory one. On
the substantive side, the following five main groups of comparative
legal studies have been distinguished:
1. comparing one or more foreign legal system(s) with the domestic
system;
2. analyzing the solutions different legal systems offer for a legal
problem;
3. investigating the causal relationship between legal systems;
4. contrasting the different stages of various legal systems; and
5. examining the general legal evolution.
13. Legal Comparison
Bilateral
between two legal
systems
Multilateral
between more
than two systems.
may address the substantive law or formal
characteristics of the legal systems under
consideration
14. International level – Comparative study as to how the foreign
affairs is structured and operates in different states.
National Level – study indicating what powers are granted to what
officials, over whom, with respect to what values and subject to
what conditions or limitations.
Comparison within a single state is referred to as internal
comparison, in contradistinction to external comparison, i.e.
comparison of laws belonging to different national or international
legal orders.
Mixed legal systems provide interesting materials for internal
comparison within a unitary state. Such a comparison is useful for
explaining the significance and possible interrelation of the various
legal sub-systems, local or personal, within a unitary national legal
system.
15. Lambert – Comparative law has two purposes
1. The discovery by means of a process of comparison of the causes
which underlie the origin, development and extinction of legal
institutions.
2. A practical aim – to create an international common law
consisting of rules which are applicable to the needs of such
communities as have attained the same standard of civilisation.
McDougal – the purpose of comparative law is the clarification for all
our communities - from local through regional to global – of the
perspectives the conditions and the alternatives that are today
necessary for securing, maintaining and enhancing basic democratic
values in a peaceful world.
16. The purpose of comparative law is to ascertain
- How far, and
- In what respects
the two legal systems differ from each other.
To attain deeper knowledge of legal systems in effect.
To advance the knowledge & skills of advocate.
To assist in harmonisation of law.
To contribute in the improvement of our own legal system.
To analyse and execute domestic legal instruments according to
the new policy.
The recognised purposes of comparative law are –
1. the promotion of understanding of one’s own legal system
with a view to produce better lawyers and law
2. promotion of understanding between nations with a view to
reduce world tensions.
17. Comparative Law has gained importance for two reasons
1. The increased globalisation of world trade, involving the need to
conduct business in unfamiliar legal systems.
2. It is the move towards harmonisation of laws and more recently
towards codification within the European Union, where several
legal traditions co-exist.
18. method of study of various
legal phenomena.
an independent scientific and
educational discipline
Pollock, David, Gutteridge, Patterson
• if comparative law were a distinct
science what should constitute its
subject
• it plays an important role in the
interpretation of legal norms pertaining to
various legal systems.
• tool for a more profound understanding
of legal data.
Rabel, Ewald, Saley, Watson
• resulted from analysing and resolving
new problems in general jurisprudence
• science of comparative
jurisprudence originates from the
synthesis of the comparative
method with legal philosophy
19. According to the third theory, comparative law is both a method of legal
science and an independent scientific discipline.
The first case may be exemplified via comparative investigations in any
branch of law, where the comparative method is used as the tool for
collecting information on compared systems or legal phenomena.
In the second case, comparative law is juxtaposed with general theory of
law and, therefore, it is obviously more expedient to speak about
comparative jurisprudence as a science constituting an independent field of
knowledge than merely a comparative method.
20. Wigmore classifies Comparative Law into three -
• The description of other systems of
law
Comparative
Nomoscopy
• Assessment of the relative merits of
the rules under comparison.
Comparative
Nomothetics
• The study of the development of
systems of law in relation to one
another.
Comparative
Nomogenetics
21. According to Gutteridge
• Comparison instituted for the sole
purpose of obtaining information as to
foreign law.
Descriptive
• Comparative research carried on with
some other aim in view.
Analytical
/ Applied
22. • description of the norms, concept and institutions of the
systems concerned or the examination of the socio-
economic problems and the legal solutions provided by
the systems in question.
DESCRIPTIVE
PHASE
• It concerns with the identification or discernment of
differences and similarities between the systems under
comparative consideration.
IDENTIFICATION
PHASE
• Under this phase the divergences and resemblances
are accounted for.
EXPLANATORY
PHASE
W.J. KAMBA - there are 3 stages in comparative law -
23. Comparative Law involves drawing explicit comparison, and non–
comparative foreign law writing could be strengthened by being
made explicitly comparative.
Comparative method consists in focusing careful attention on the
similarities and differences among the legal systems being compared
but in assessing the significance of the differences the comparatist
needs to take account of possibility of functional equivalence.
The process of comparison is particularly suited to lead to
conclusions about –
-Distinctive characteristics of each individual legal system
-Commonalities concerning how law deals with particular
subject of study.
24. In establishing what law is in each jurisdiction under study
comparative law should –
• Be concerned to describe to normal conceptual world of lawyers.
• Take into consideration all sources upon which legal system might
base her opinion.
• take into consideration the gap between law in in books and law in
action.
• Important gaps in knowledge about either law in books or law in
action.
One of the benefits of comparative analysis is the tendency to
push the analysis to broader levels of abstraction through its
investigation into functional equivalence.
It has the potential to lead even to more interesting analysis by
inviting the comparatist to give reasons for similarity and
differences among legal systems.
25. Comparative law requires strong linguistic skills & may be skill of
anthropological field study in order to collect info about foreign
legal systems but it is also reasonable for scholars who having
necessary linguistic skills to rely on secondary data subject to
usual caution about using it.
Comparative law scholarship should be organised in a way that
emphasise explicit comparison.
Comparative study should be undertaken in spirit of respect for
the others.
26. There are four critical parts to comparative methodology.
acquiring the skills of a comparatist in order to evaluate law
clearly, objectively, and neutrally.
evaluation of the law as it is expressed concretely, in words,
action, or orality; referred to as the external law.
evaluating how the law actually operates within a culture - referred
to as law in action or the internal law. To evaluate the law’s actual
operation within a culture, we need to examine the underlying
sub-structural elements within the culture that drive and influence
the law.
assemble our data and conclude with comparative observations that
can shed light on both a foreign legal culture and our own.
27. It increases one’s own knowledge and understanding of law and legal
system , as it operates in foreign in comparison with once own law.
Aids a legislator to enact new law or suggests modification of existing
law in light of foreign laws.
Aids the judge in arriving at correct conclusion and enables the council
to formulate legal principles for consideration of the court.
Aids the court and the lawyer in correctly interpreting ambiguous
statute.
Assistance to jurists, diplomats and visitors in foreign countries in
avoiding territorial conflict.
Described as the ‘Cinderella of the legal sciences.’
28. Municipal Law generally refers to the internal law of the
sovereign state and it comprises of Private and Public Law
The term was derived from the Latin word Municipium,
which signified city which was governed by its own laws
and which had its own magistrates.
Municipal law or Civil law is the law of the land. It is the
law enforced by the state and is essentially territorial in
nature as it applies within the territory of the concerned
State
Justice Blackstone defined Municipal law as “a rule of
civil conduct prescribed by the supreme power in State,
commanding what is right and prohibiting what is
wrong”.
29. In Louisville v. Babb, 75 F.2d 162, 166 (7th Cir. Ind. 1935) the
Court provided that the Municipal law is not the law of the city
only, but the law of the state.
Municipal
Law
Public Law Private Law
30. It is the law that governs the political authority of the state and
regulates functions and structures of legislative, executive and
judiciary.
It deals with the relationship between the State & its subjects
and between various organs of the government.
The term Public Law can be traced back to its Roman roots as
“RES PUBLICA” i.e. the public thing or in public interest. (Cicero)
In a democracy what is held by people and governed through
State in the interest of people can be defined as Public Law and
enforced through government instruments.
31. CONSTITUTIONAL LAW
• The Grundnorm which defines the
foundation and objectives of a nation.
ADMINISTRATIVE LAW
• Relating to powers and functions of
the government and its relationship
with its various organs.
CRIMINAL LAW
• Statute based laws restricting
behaviors which harm the public in the
society and detailing punishments for
infringing such laws.
PUBLIC INTERNATIONAL
LAW
• The laws governing inter-state
relations in the global world and also
their relation with International
Organizations.
32. ‘Constitution’ is referred to as a body of rules regulating the way in
which an organization or institution operates.
Hibbert - they are the rules governing the relations between the
Sovereign and it’s subjects and the different parts of the sovereign
body.
Dicey states that it includes the rules which directly or indirectly
affect the distribution or exercise of sovereign power of the State.
Austin sees it as positive morality i.e. rules that control the
sovereign
Willoughby criticizes by stating that it binds and controls the
powers of the government and not the State.
33. Defines the organization, powers and duties of
administrative authorities
Jain and Jain - it deals with the structure, power and
functions of the organs of administration.
Holland, differentiates between constitutional and
Administrative law and says “constitutional law is at rest
what administrative law is in motion”
Constitutional deals with structure while administrative
law deals with functions of the State,
34. K.D. Gaur, Criminal law deals with the crimes and their punishment,
where the state imposes sanctions for defined crimes committed by
individuals or businesses so that society can achieve its brand
of justice and a peaceable social order.
Taking the punitive view, Moore limits criminal law to one which
delivers justified punishment.
Gardner and Duff take the curial view which defines it to be the law
that responds to the crime and brings accused to the courts
Differs from civil law in that civil actions are disputes between two
parties that are not of significant public concern.
35. That part of law which affects the rights and obligations of
individuals, families, businesses and small groups and exists to
assist, citizens in dispute that involve private matters.
Private law is that part of a civil law legal system which involves
relationships between individuals, such as the Law of contracts and
torts.
The State’s involvement in this area of law is confined to providing a
civilized method of resolving the dispute that has arisen. Thus, the
legal process is begun by the aggrieved citizen and not by the state.
The State acts as an adjudicator and takes the position of an arbiter.
36. Private law consists of both General part and a Specific part. The
general part contains rules which are common for every specific
category. These rules are shared by all possible private law relations.
For example, the provision of good faith equally applies in the law of
persons as in contract law, in property law or in inheritance law
The Special part contains a set of categories that are dependent on
the subject matter of legal relation.
37. CONTRACT
LAW
The branch
of law that
provides
rules
regarding
agreements
between
people and
businesses
TORT LAW
It holds a
person or
private
organization
responsible
for damage
they have
made.
FAMILY LAW
It deals with
the various
aspects of
family life
such as
requirements
for a valid
marriage,
maintenance
of wives and
children,
requisites for
a valid
adoption etc.
PROPERTY
LAW
It is that
branch of
law which is
concerned
with a
person’s
relation
with ‘things’.
It governs
forms of
property
ownership,
transfer and
tenant
issues.
SUCCESSION
LAW
Governs the
transfer of an
estate
between
parties. It
deals with
the question
of passing of
property and
other related
rights due to
death of the
original
owner.
PRIVATE
INTERNATIONAL
LAW
It refers to the
laws, rules,
regulations,
treaties,
protocols, case
law that govern
private individuals
in an international
context (between
more than one
country/different
jurisdictions
38.
39. .
It is the body of principles and rules which civilized states consider as
binding upon them in their mutual relations.
Composed of the laws, rules and principles of general application that
deals with the conduct of nation states and international organisations
among themselves.
They are the rules which regulate the conduct of the States in their
mutual dealings and intercourse with one another.
Set of rules entered by the government of various countries that
determine the rights and regulates the intercourse of independent
nations.
40. SS Lotus case (France vs. Turkey), the Permanent court of International
Justice defined international Law as meaning the principles which are in
force b/w all independent nations.
Gutteridge observes that this relationship is of a very shadowy nature
and the only possible link b/w the two is to be found in the extent to
which the comparative study of private law can be regarded as an
instrument to be employed in promoting the growth and development
of the Law of the Nations.
International law is not comparative law and vice-a-versa, because we
can study one without exploring the other.
41. Prof. Blakesley makes the point that a comparativist approach to
international law allows one to better navigate the intellectual
contours of that particular field.
Comparative law in this regard serves to palliate the confusion that
might sometimes arise in the world of sovereign nations each of
which perceives a law differently and public international law helps in
navigating those tough contours.
42. That part of the law that is administered between private citizens of
different countries.
Is concerned with the definition, regulation and enforcement rights in
situation where both the person in whom the right inheres and the
person upon whom the obligation rests are private citizens of
different nations.
Private International law is a merger of two concepts i.e. Private law
and of International law wherein the former is concerned with the
law that is voluntarily invoked by individuals or States acting in the
capacity of an individual by entering into any sort of legal
relationships.
43. Governs the choice of law to apply when there are conflicts in the
domestic law of different countries related to private transactions.
There is a dispute or transaction that involves one of the following –
1. Jurisdictional issue – choice of court/forum
2. Choice of Law
3. Recognition of enforcement of a foreign Judgment
It is a set of rules and regulations that are established or agreed
upon by citizens of different nations, who privately enter into a
transaction and that will govern in the event of dispute.
44. Much in Common –
Both focus on necessity for international collaboration in matters of
private justice
Both exist because of different legal systems
Both are concerned with the differences which exist b/w the legal
systems of the world
Comparative Law is a particular method of study and research; whereas
private international law is law in full sense
45. If a dispute contains a foreign element, Private international Law
intervenes to select the jurisdiction which is competent to decide it and
the system of law by which it is to be governed.
Thus it is selective and not comparative – the judge does not compare the
foreign law with its own law.
Comparative law is neither concerned with the selection of appropriate
jurisdictions or with the choice of law and nor confined to conflicts of
jurisdictions or law.
Private International law has the effect of stabilising a situation of
conflict.
Comparative law does not act as an umpire in case of a conflict, rather aims
towards a solution which will do away with the conflict once and for all.
46. Public International Law Private International Law
Rules are the outcome of
International custom and treaties.
Rules are framed by the State legislature.
Is the body of legal rules, which
applied between Sovereign States
and other International
Personalities.
is same for all the States. differ from state to state.
there is no Predetermined Court Courts are predetermined.
is enforced by the concerned State
executive.
is enforced by international pressure
and fear for example – breakage of
diplomatic relations, sanctions etc.
Law regulating relationship between
Private persons (Natural or Legal) of two
different States.
Family law matters, Contracts, Torts,
Conventions Treaties etc.
Humanitarian Laws, Law of the
sea
