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 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.
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
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
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:
- To perfect the legal system in effect.
- To attain a deeper knowledge of the legal systems in effect.
- Possibly to contribute to the unification of legal systems, of a smaller
or larger scale.
- 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.
- 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
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
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.
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
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
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
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.
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
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 LawThere are two types of comparisons in comparative law, which are as follows:
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.
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
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:
- 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.
- There are different ideologies in government and politics, which act as
a obstacle in comparison.
- It is difficult to think that any comparison is done without biases,
intellectual’s talk toward their ideology, nation, etc.
- Government and politics cannot be truly compared, as for the comparison,
the subject needs to be empirical.
- For comparison, there is a requirement of skilled manpower, time, and
also the capital.
- Different forms of government assert that their system is superior and
better, which is one of the most prominent problems in comparison.
- The criteria’s which are used for the comparisons, are not accepted by
all the stakeholders.
- Many times, it has been noticed that government do not allow their
system to be studied by outsider.
- Inbuilt prejudice in the mind of personnel who carry out comparison is a