What is Comparative Law?
Comparative law is the study of differences and similarities between the law (legal systems) of different countries.
It involves the study of the different legal “systems” (or “families”) in existence in the world, including the common law, the civil law, socialist law, Canon law, Jewish Law, Islamic law, Hindu 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.
Relevance/Importance of Comparative Law?
Comparative law is a method of study and research. The comparative method of legal study is. therefore, useful both from practical and academic point of view.
It is applied to legal studies and research in various departments. Its utility is great in law domain of commercial law. It is useful to the legislator and law reformers alike. It has great value in International relationship. Its utility is great to the community at large, both in national and International spheres. It provides framework to a legal practitioner for handling legal problems involving foreign law.
Comparative process is useful in Comparative jurisprudence, Comparative Legal history, Constitutional and Administrative law, Criminal law, Labour Law , Law of obligations, Commercial Law, Rules of procedure, Legislation and Law Reforms as also International Law and International relations.
Utility of Comparative Process as applied to Comparative Legal history
Comparative law can be of great utility when applied to Historical research. In ancient law, there was an intimate relationship between comparative law and historical research.
The term legal history records simply the changes which have accrued in the development of law whereas comparative legal history signifies the process of changes in the development of law in various countries.
It is the function of legal history set forth the development of law, allotting to each phase its true position in the completed narrative. Legal history, however is not critical, except unconsciously.
According to Professor Guttridge ‘ in any event, research , research on historical lines is one of the indispensable tools of a comparative lawyer whether considered with questions of an academic nature or is utilizing the comparative process with a practical aim in view.
Utility of Comparative Process as applied to Comparative Jurisprudence –
According to Professor Gutteridge , Comparative jurisprudence for our present purposes is employed to signify the use of the comparative method as an aid to analytical Jurisprudence.
“Comparative Jurisprudence”, observes Professor Keeton, considers the development of two or more systems of law.. The science may have for its object the of those legal rules which are common to the legal system studied; or it may discuss those relations of individual which have legal consequences, together with an inquiry how those relations find expression in the legal systems considered.” It may, can usefully be attempted.
Utility of Comparative Process as applied to Constitutional and Administrative Law –
Constitutional law consists of rules which regulates the structure of the principal organs of the Government and their relationship to one another, and determines their principal functions. Administrative law deals with day to day activities officials in relation to the members of the public and is a breach of constitutional law dealing with the powers and functions of executive authorities including local government officials. There is room for comparative study of problems connected both with the Constitutional law and Administrative law. The relating to public services and those governing relations in general between central and local authorities and the citizen afford wide scope for comparative study.
Utility of Comparative Law as applied to Commercial Law –
Diversity of commercial laws of obtaining in different countries acts as a stumbling block in the improvement of free trade and free commerce. Therefore, need for a study of unified commercial law using standardized form of contract with minor alterations and amendments to suit local conditions or the special conditions found in a country.
Utility of Comparative Process as applied to Legislation and Law Reforms –
According to Sir Henry Mine, Chief function of Comparative Jurisprudence is to facilitate legislation and the practical improvement of law. The legislator draws largely from a comparison of laws of different countries. A law reformer also seeks great assistance from comparative studies of the laws of various countries.
The subject of study of foreign legislation has received official sanctions in various countries. On the continent the French Government have established a departmental Committee charged with this task. The German law dealing with the trading companies and partnerships is also based on a study of trading laws prevalent in foreign countries. In India the company legislation, the Partnership Act and other mercantile laws are based on English Laws. The Workmen’s Compensation Acts in different countries are also based on a comparative study of the problems and legislation in different countries.
Utility of comparative Process as applied to Criminal Law
Social, Religious, Political, and Economic conditions in a country necessitate varying legislative enactments suiting the condition of the Country. In this sense of law, the law of crime varies from country to country. But still comparative law furnishes material for unifying criminal law in matters where such unity can be obtained. The penal laws of different countries provide useful material for the legislator and the law reformer alike. Steps taken to combat crime in one country and the result achieved will be of great you too will be of great assistance to them in other countries
Utility of Comparative Process as applied to Industrial or Labour law
This branch of law aims to improve conditions of labour. A comparative study of labour laws of different countries is, therefore of great advantage. As a country advances and is more and more industrialized, the problems of labour Which crop up at a very much is similar in kind; and as such a unified labour law will be the great utility.
Utility of Comparative Process as applied to Comparative procedure
There is also need for the study of comparative procedure even though there may be uniform laws all over the world, if the procedure of obtaining in various countries is not the same the whole object will be defeated. What should be the kind of evidence, how a judgement or decree Can be enforced, are matters which should be uniform. Therefore, need for study of comparative procedure as also framing of rules which should be made applicable to the laws of various countries.
Utility of Comparative Process as applied to Law of Obligations
The law obligation deals with contracts or crimes which create rights in personam between the parties, such as contract of sale and purchases, leases and guarantee as also torts. Breaches of contract, tortious acts or defamatory acts, provide almost the same liability and afford almost the same relief in almost all the countries. The law of torts is a characteristic of English law ; but the principal enunciated the law formulated by jurist there offer wide scope for adoption and emulation of the principals in other countries. The law relating to negligence, nuisance, defamation, lible and motor traffic provides scope for a Comparative study.
Roman law is the source from which many countries have shaped their laws of obligations. A comparative study of the law of obligation will therefore, be great utility to legislators.
Utility of Comparative Process as applied to Source of law –
Precedents form an important source of law. The great body of common law of England is almost exclusively attributable to decided cases.
It is fundamental principle of Anglo American legal system to attach great weight to the doctrine of judicial precedent. A judicial precedent of court of a foreign country has persuasive value.
In India the supreme Court is the highest court under the constitution and the decisions of the privy Council do not carry that authority. Such decisions are, however, only persuasive.
In England the Chancery Courts drew largely from the Roman law. English commercial law also derived from foreign sources.
the system of jurisprudence in foreign countries and the ratio decidendi of a decision of a foreign Court throw light on national laws, and the national judges do not necessarily base their decisions on foreign judgements for the purpose of “testing the soundness” of their own conclusions.
According to Professor Guttridge , ” If unification of law is to be anything more than a pretense it would seem to be essential that the Courts of countries concerned should endeavor to secure uniformity in their decisions so far as is reasonably possible.” That is, however, a very tall proposition. It is not an easy thing to achieve that objective. However, if an attempt is made to unify law by a study of precedents of the courts of the countries concerned, it will be of great benefit to the legislators and the law reformers all over the world.
Methodology
