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. Advantages/ significance or value 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.
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:-
By observation of different laws, the same law can be
introduced in other countries. E.g.
(iii) Helpful in improvement of laws:-
Comparative study of laws helps in legislation and
improvement of existing laws. 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.
