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Comparative Law: Conceptual Study

Comparative law is an educational discipline in which, the legal systems of different countries are studied. This has led to the development of various branches of law, such as constitutional law, comparative administrative law, commercial law, etc. Comparative law is different from general jurisprudence, public and private international law.

Comparative Law

Comparative law is defined as the study of differences and similarities between the laws of different countries. It is the systematic application of the comparative technique, a discipline, and a method by which the values of human life are known and evaluated. It is not a law in itself but a method of looking at the legal problems, a comparative approach to the study of laws and legal institutions of two or more countries.

It is not a particular branch of law or a subject, but a process of study of foreign law in comparison with local law. It is a process of gaining from the law as they obtained in foreign countries. It ascertains the differences and similarities in the legal rules, principles, and institutions of two or more countries with a view to finding solutions for local problems. It helps in establishing harmonious relations with other countries.

Nature
The nature of law is changing as well as the characteristics of the State. More specially, it involves the study of the different legal systems in existence in the world, including the common law, civil law, socialist law, canon law, Jewish law, Hindu law, Islamic law, and Chinese law. It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken.

The importance of comparative law has increased enormously in the present age of internationalism, economic globalization, and democratization.

According to Prof. Gutteridge, “It is an unfortunate but generally accepted level for the comparative method of legal study and research which has come to be recognized as the best means of promoting the community of thought and interest between the lawyers of different nations and as an invaluable auxiliary to the development and reform of our own and other.”

Origin of Comparative law

The origin of modern comparative law can be traced back to the Latin language book “Nova Methodus Discendae Docendaeque Jurisprudentiae” (New Methods of Studying and Teaching Jurisprudence). The book was written by Gottfried Wilhelm Leibniz in 1667.

Although every legal system is unique, comparative law, through studies of their similarities and differences, allows for the classification of legal systems, where in ‘law families’ is the basic level of the classification. The main differences between law families are found in the source of law, the role of court precedents, the origin and development of the legal system.

Comparative law in the US was brought by a legal scholar feeling persecution in Germany. Nowadays, the purpose of a State is the welfare of society and as a result, the modes of the legislature are changing. The future of comparative law depends on the universal approach of recognizing the different categories of legal rights.

The origin of comparative law may at the earliest be traced from the middle of the 19th century. The historical school of thought did not encourage the development or study of comparative law. The era of codification also did not improve matters, however, some work was done in Germany by Feuerbach, Gans, and Thibaut. In 1829, Mittermaier and Zachariah started the legal review denoted to the study of foreign law.

A chair of comparative law was established in France at the College de France in 1832. A chair of comparative criminal law was also established in the University of Paris in 1846. In America, there was hostility to anything which was associated with English law. Accordingly, natural law prevailed and was taken inspiration from the writing of the French Justices.

The relevance of Comparative Law

Comparative law is an academic discipline that involves the study of legal systems, including their constitutive elements and how they differ, and how their elements combine into a system. Several disciplines have developed as separate branches of comparative law including comparative constitutional law, comparative administrative law, comparative civil law, comparative commercial law, and comparative criminal law.

The objectives of comparative law can be understood with the help of the following points:

  1. To perfect the legal system in effect.
  2. To attain a deeper knowledge of the legal systems in effect.
  3. Possibly to contribute to the unification of legal systems, of a smaller or larger scale.
     
  4. The improvement of national legislation was the prime consideration during the 19th century in countries that were codifying or recodifying their legal systems. Numerous later additions to the Code Napoleon, drawn up in 1804. Many other countries, of course, followed France’s lead and introduced, into their own systems, elements of the French Napoleonic codes and institutions of French public law. It is well worth noticing that a book on French administrative laws was published in German by Otto Mayer before Mayer felt himself able to write a textbook on German administrative law.
     
  5. In modern times, the spirit of nationalism has often tended to frustrate the development of an international law that would overcome individual national differences. One task facing statesmen and jurists is to inject new life into this effort, adapting it to the exigencies of the modern world. Those engaging in international trade, for instance, do not know with certainty, which national law will regulate their agreements, since the answer depends to a large extent on a generally undecided factor namely, which national court will be called upon to decide the questions of competence.


Thus, the sole lasting remedy would seem to be the development of international law capable of governing all legal questions outside the jurisdiction of a single State. Such a project can succeed only through the medium of comparative law.

The methodology of Comparative Law Structure Method

From a broader perspective, a more structural analysis of legal system may be used while discussing the approach in social sciences in general, but presenting it as an alternative to the functional method in comparative law. When elaborating the classifications of ‘legal families’, a structural approach has been underlying them.

Differences between legal systems at the level of concentrate rules becomes irrelevant if they share enough structural commonalities, such as Roman law principles and concept in private law, to classify as a member of the same legal family, as opposed to other legal systems and families which don’t share those commonalities. Of course, the selection of the most relevant criteria for determining ‘similar structures’ partly determines the outcome.

The Analytical Method
Many legal concepts, in all legal systems, contain a bundle of rights, of a different kind. Property, for instance, includes a claim liberty and a power. By looking at this deeply, we may better distinguish differences and commonalities between legal systems as to apparently similar or different concepts.

For example: Ownership of land V. Fee simple absolute possession, easement V. servitude, mortgage V. hypotheque used in each legal language. A broad concept such as ‘trust’ in the Anglo-Saxon tradition is unknown in continental Europe.

The Law-in-Context Method

Almost all the legal jurists agree that comparative research cannot be specific to pure black-letter comparison of the legal concepts, rules or systems. Even the domestic legal doctrines take into account, how the law works practically, as far as it gets transpired from the judicial decisions. Whereas, law-in-context as a method cannot be separated from different methods, as some forms of analytical methods can be carried out at a more abstract and conceptual level, rather getting disconnected from the actual social reality. However, this is not true for other ways of comparisons.

There is a wide range of possibilities in the law-in-context method of research. One may just mention generally known context element, like the liberal economic world view which underlies the European Union. Others may use the data from various researches like anthropological, historical, sociological, psychological etc. They may also carry out such research on one’s own. Others may set-up large interdisciplinary comparative projects where various non-legal disciplines are combined together.

The outcome depends on the focus of the research and the knowledge available with the involvement of researchers, time and financial means while choosing the type and size of law-in-context approach.

Rodolfo Sacco, in his law-in-context approach, has focused on the ‘legal formants’ (it can be defined as all elements that constitute the ‘living law’ of a country), i.e. what has made the law as it is. According to this approach, the legal context is most important, i.e. legislative and constitutional rules, legal doctrines and case law, however, it also includes the ‘implied patterns’ and other hidden elements, like influencing the way law is interpreted and handled. Sacco calls them ‘cryptotypes’.

Some of these cryptotypes are more specific, while others are general. If they are more general, it gets harder to identify. In most extreme cases, they may form the conceptual framework for the entire system. This conceptual framework necessarily plays a very decisive role in the way law is interpreted, perceived and applied.

The Common-Core Method

By the end of 19th and early 20th century, the comparative lawyers, under the influence of the positive sciences, wished to find out which legal rules, legal concepts and legal institutions were common in all societies. Later, the target was limited to the civilized nations which are at the same level of development, but that did not proved to be very realistic.

However, in the second half of the 20th century, various innovative initiatives were implemented with an aim to find out a common-core among various legal systems in some areas.
Now, the focus shifted on to how the various legal systems are solving the issues rather than on their legal rules and concepts. The largest project was conducted at Cornell University from 1957 to 1967, in the area of the formation of contracts.

The creation and development of the European Union along with a tendency to harmonies the legal provisions within the EU stimulated the research to be conducted into the common-core of law in Europe, which needed to be identified within each of the member nations. “Trento Common-Core Project’, as a follow-up of the Cornell project, was launched in Italy by Ugo Mattei and Mauro Bussani, which was more ambitious in comparison to the previous project.

The common-core method is basically based on the functional method, and to some extent it was combined with the law-in-context method. The primary aim of the common-core method is to search for similarities and differences among the various legal systems in view of the question, to what extent harmonization is possible among the compared legal systems.

Functional Method

According to its basic understanding, the functional method never compares primary rules, but it compares solutions to practical problems with conflicting interests. It is true to say that there are various universal human attitudes to specific situations, like taking care of children, respecting property rights, compensating in one way or another to the damages caused by one’s wrongful conduct, executing contractual obligations and many others.

Therefore, the practical solutions to the problems of similar nature in those areas, in different legal systems will converge than the legal roads used to reach the desired results.

For example, canon law does not encompass divorce, however, in the current scenario; almost all the countries with a Christian tradition have legalized the concept of divorce in their legislation.

In practice, following the popular book on comparative law by Zweigert and Kotz, it is often taught at various universities that method. It is supported by the alleged conclusion that the rules and concepts may vary but most of the legal systems solve their legal problems in the similar manner. However, both the authors never elaborated or applied this method themselves.
Functionalism is used in various divergent meanings, serving rather different goals, focusing on similarities, building a system, understanding law, comparing, determining the better law or the critical appraisal of the legal orders.

Historical Method

The historical method is actually a part of the ‘law-in-context’ method. Here, the historical origin of the current day laws is compared. A very peculiar feature of historical method is that it is not possible to avoid it in any comparative research. In some societies, it is possible to understand the functions of law only when one is aware of the actual origin and the reason behind ‘why it is, as it is today’.

It is not by chance that ‘comparative legal history’ has become very popular among legal historians in the last decade or so. For the comparators, information and sources on legal history are more easily available than for any other form of law-in-context approaches.

In almost every traditional legal doctrine, most of the books include some historical chapter or historical reference related to the origin of some legal concepts, legal construction, legal rules etc. A historical study also makes use of sociological, psychological, economic and/or other context data.

Historical comparison not only explains the origin and reason for the present law in a particular society, but it also reveals that similar rules and approaches to law which are found in a particular legal system were also present in the past.

Types of Comparisons in Comparative Law

There are two types of comparisons in comparative law, which are as follows:
Micro comparison
There is no need for a specific or particular preparation for the purpose of micro comparison. A person who is a specialist in one national system is well qualified to study the systems of various other countries of the same general family. The only basic requirement is access to bibliographical material.

For example, in USA, each State has its own statutes and for some purpose, its own status of common law. So, an American lawyer needs to be micro-comparators as he is required to deal with the system of 50 states and federal law into daily account in his practice of law.

The same logic is true for the Australian, Indian or a Kenyan lawyer, who is expected to take into account not only his own national system but also the laws of England and of other common-law jurisdictions in the Commonwealth. However, French comparative law students find it difficult to contrast the laws of certain countries, as they are confined to study only French, German, Italian and Dutch law which are similar in tradition and structure and are meant to serve a similar type of society.

Macro comparison

In macro comparison, the situation is completely different. ln macro comparison, no comparison is possible without prior identification and thoroughly mastering the fundamentals of the law systems as they differ from place to-place. It is expected from a jurist to keep his/her training aside and should begin to reason or ask questions according to new criteria.

If a jurist belongs to France, Britain or USA, then he/she must recognize that in some folk societies of East Asia, the upright citizen never crosses the threshold of a courtroom and no subjective right is acknowledged. Instead the citizen’s behaviour is governed by the rites and rituals handed down from the ancestors, which ensure the approval of the communality.

Similarly, if a Western jurist wants to understand the Islamic law or Hindu law, then he is required to realize that law is contained in the rules of conduct, which are laid down by any particular religion for its followers only. These rules which create obligations and not rights are ranked above all worldly matters. They should not be confused with the regulations which are enacted and ratified by the concerned governments.

Also, if a Western jurist compares his system of law with that of a communist State, he/she must make one thing very clear that ‘on no account does the citizen of a Marxist-Leninist State regards the rule of law as an ideal for society.

It is a mandatory for a French or German jurist to shift the legal gears prior to grasping the vital importance that the American or English lawyers traditionally attach to the concept of due process and the rules of evidence. Procedural rules are secondary to substantive law.

The specialist of macro comparison is expected to bring out the structural differences which exist between various legal systems. Accordingly, the Anglo-American jurist is expected to be aware of the importance of the distinction between private and public law, i.e. between law involving the individuals and law involving the State. A Roman jurist must, on the other hand, appreciate the significance of the concepts of common law and equity.

A jurist who belongs to a centralized country must familiarize himself with the distinction between laws of secondary jurisdictions (provinces, states, and so on), and the federal law, which means a distinction that is of fundamental importance in many countries across the world.

If a jurist belongs to a country like France or England which acknowledges the sovereignty of the Parliament, then he is expected to give due weightage to the importance of constitutional law in countries that permit courts to review the constitutional validity of legislative acts, particularly in countries like the USA and Germany. The jurist in a ‘bourgeois’ country is supposed to appreciate the policy of collective ownership of means of production in socialist States.

Problems and Concerns in Comparison
Comparison is a very dynamic subject. Ideals and principles of government are not universal in nature.

Some of the common problems and concerns in comparison are as follows:

  1. Government and politics is decided by the situation of a country and situation varies from one place to another, thus for comparison, there should be a similar condition.
  2. There are different ideologies in government and politics, which act as a obstacle in comparison.
  3. It is difficult to think that any comparison is done without biases, intellectual’s talk toward their ideology, nation, etc.
  4. Government and politics cannot be truly compared, as for the comparison, the subject needs to be empirical.
  5. For comparison, there is a requirement of skilled manpower, time, and also the capital.
  6. Different forms of government assert that their system is superior and better, which is one of the most prominent problems in comparison.
  7. The criteria’s which are used for the comparisons, are not accepted by all the stakeholders.
  8. Many times, it has been noticed that government do not allow their system to be studied by outsider.
  9. Inbuilt prejudice in the mind of personnel who carry out comparison is a big concern.

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