Comparative Law

1. Meaning:-

Comparative law is the study of law existing in different

countries or regions. It contains the study of evolution of specific
institutions in various legal systems and to examine the legal evolution
according to the periods and systems b comparing laws. The same law
existing in different countries are compared with one another and a
valuation is given. It is the method of study of law and not the law
itself.

2. Definitions:-
(i) Prof Lee defines comparative law as - an independent method
of study and research in law. But it is not in itself an
independent branch of law.

(ii) Gutteridge defines comparative law as – comparative law is a

name given to a process or method by which two or more legal
systems or parts thereof are compared with the idea of study
and research in law.

3. Nature and Scope of Comparative Law:-

Modern comparative law is usually recognised as having

begun in 1900 at the International Congress of Comparative Law held in
Paris, where the first serious and organised attempts were made to
formulate the functions and aims of comparative law.

According to Wigmore, when we lift our eyes beyond the sphere of

national law and observe the systems of laws outside, present or past, we
find three modes of activity for out thought of them.

Firstly, we may seek to ascertain and describe the other systems, as facts.
If we take the term Nomology to denote the science of law in general, and
Nomoscopy to denote the description of the facts of any system of law,
then we call this branch Comparative Nomoscopy.
 Secondly, we may seek to analyse the policies and relatives merits of
different legal institutions (e.g. the French and English inheritance rules)
with a view to moulding legislation; let us call this branch Comparative
Nomothetics; this is the main activity.

Thirdly, we may seek to trace the evolution of the various legal systems
in their relation to one another in chronology and causes. We can call this
branch Comparative Nomogenetics.

4. Types of Comparison:-

In general, comparative legal studies can be divided into two main

groups:-

(a) Macro level comparison: it represents the comparison of two or more

legal systems as a whole. E.g. if we compare the entire German and US
legal system, it is a macro level comparison.

(b) Micro level comparison: it deals with analysis of a specific legal issue
and how it is treated in two or more legal systems. E.g. if we want to
study the closeness of contract in German and US legal system
respectively, then the comparison of contract law of these legal system is
done and is called micro level comparison.

However, this distinction of macro-micro level comparison is only a

superficial. On the substantive side, the following 5 main groups of
comparative legal studies have been distinguished:-
(a) Comparison of one or more foreign legal systems with the domestic
system (in order to ascertain similarities and differences).
(b) Analysing (objectively and systematically) the solutions different legal
system offer for a legal problem.
(c) Investigating the causal relationship between different legal systems.
(d) Contrasting the different stages of various legal systems.
(e) Examining the general legal evolution.
5. Origin and Development of Comparative Law

The origin of comparative law is different from the origin of

other laws. Comparative law is of recent origin. Its aim is to reform the
legal principles and unify the law by bringing the various nations close to
each other.

Romans were the first to establish the study of Comparative law. Roman
Tribunals applied the concept of natural law in their administration of
justice.

After the Roman period, the comparative law developed during the
Justinian period. In this period, due to migration of people from one State
to another, laws of other States had to be reduced to writing. Though
there was no method of comparative study, there was some research n the
field of comparative law.

During the 16th century, Roman laws and German laws were compared
and many books were published. Improvements in Roman laws were
made after studying German laws.

In England, Roman law was made part of the curriculum and thus Roman
law started influencing common law. So, comparison of English common
law and Roman law was made and books on this were published.

Montesquieu studied laws of different countries and demonstrated the

advantages of comparative law. He is regarded as the Father or Founder
of Comparative law.

In the 19th century, comparative law gained popularity and significance.

In 1846, a University was established at Paris for the study of
comparative law.

In England, comparative law was introduced by Sir Henry Maine. He

published the book “Ancient Law” in 1861. He compared the Roman
law, the European law and the present law of the England. In England,
the necessity of comparative study of law was realized in order to
improve the defects of law in their own country. In 1869, comparative
 jurisprudence was established in Oxford University with Henry Maine as
the Head. In 1884, the University College in London established
comparative law study. In 1895, English Society of comparative
legislation was established. In 1945, Cambridge University started a
Department of Comparative law in order to encourage the study of
comparative law.

Development in India:-

Indian Committee of Comparative law has been formed and its joint
meeting was held on 25th Sept. 1953 at Madras University.

In the legal education, comparative law is one of the subjects of study and
even some Universities have introduced comparative law as one of the
subjects in master of law course curriculum.

6. Purpose or Aim of Comparative law:-

Comparative law encourages a critical approach and

helps one to understand, the operations of legal rules and also as a forum for the
cross-fertilization of experience, ideas, cultures. The main aim of the
comparative law is to bring the nations together and to be ruled by a uniform
system of law.

7. Advantages/ significance or value of comparative law

Some of the advantages of comparative law are as
follows:-

(i) Helpful in solving various Problems:-

The study of comparative law is very advantageous to solve
the practical problems and maintain unity and harmony in the society.
Uniform standards can be achieved in certain matters.

(ii) Helpful in introduction of new laws:-

This method has the advantage of utilizing the foreign
achievements and experiences in the existing legal system of a
 particular country in another country. In other words, by observation
of different laws, the same law can be introduced in other countries.
According to Sir Henry Maine, the chief function of the comparative
law is to facilitate legislation. The legislators draw largely from a
comparison of laws of different countries.

(iii) Helpful in improvement/reform of laws:-

Comparative study of laws helps in legislation and
improvement of existing laws. By the study of foreign laws in
comparison with local laws, the law reformers can know the
drawbacks in his legal system and suggest ways and means of
improving them. Thus, it helps to locate the defects in law and
remove them. It also helps in understanding of our own laws in a
better manner.

(iv) Brings uniformity and certainty:-

In the process of codification, the comparative law plays a
very important role. By way of codification of different conflicting
laws, uniformity and certainty are brought about.

(v) Integration of different legal systems:-

The integration of different legal systems is another
contribution of comparative law. It finds the best law to be applicable
to humanity.

(vi) Harmonise the relationship between countries:-

Understanding and agreement at international level
can be brought about. Relations between countries shall improve.
Ideas from one country can be made to be applied in another country.

(vii) Helpful to the courts:-

 Any new question of law arising which is already solved
in some other country can be followed by the courts of other country.
Thus, when the law of one country is ambiguous or silent on any
point, the assistance of comparative law is useful.

(viii) Education in law will be improved:-

Education is law will be improved by comparing the
legal systems in different countries as the different legal systems can
be compared on geographical or material basis.

(ix) Helpful in Commercial purposes:-

The comparative study of different legal systems has
become increasingly important in era of globalisation and growing
trade and other relations among nations. The comparative law may be
used for commercial ends. As now corporations have their branches
in different countries and it is necessary for them to understand and
have knowledge of the laws of countries in which they have offices.
So, the comparative law is very helpful to them in this respect.

(x) Helpful to Practising lawyers:-

The comparative study of law is also helpful to
the practising lawyers. A lawyer who is conversant with foreign law
can properly conduct a case in which a foreign matter or question of
foreign law is involved.

8. Weaknesses/ Drawbacks of Comparative law:-

There are certain limitations or weaknesses
of comparative law. Some of them are:-
(i) A difficult Process:-
The process of comparison is very difficult one. It
requires special technique, aptitude, training and qualification.

(ii) Non- availability of Material:-

As for the comparison, it is necessary to have the
authoritative material of foreign countries. There is no such source
 from which comparative scholar can procure the authoritative
material of other country in his own country. He may also not be in
a position to visit the foreign country in question to collect the
material for his research work.

(iii) Lack of Experts:-

As the comparative study requires that the
researcher should have workable knowledge as to what topics
should be included in his study and how the classification of
materials should be made in consonance with the aims and
objectives of his investigation. It is to be noted that such experts
with requisite qualification are very few.

(iv) Language Difficulty:-

Another reason which has made comparative study
a difficult process is the problem of language, whether in speech or
in writing. Generally, the laws and judgements in all countries are
made, formulated and developed in their own national or local
language. The researcher may not have the proper knowledge
about that language. Even in those cases, where the translation of
these works is found in other languages, it may be the case that the
expression found in the translated work does not correspond to the
exact idea that is exhibited in the original work.

(v) No standard Technique of comparison:-

The comparative law does not provide any
standardised technique in its process. The scope, field of
comparative law is too wide and covers many aspects or problems.
When two or more comparative scholars are required to compare
the same legal systems, their technique differs from each other.

(vi) Misleading Results:-

The results of the comparative study of legal systems
are generally very misleading because of varied social, economic,
political and legal conditions of different countries.