The article is written by Vishruti Chauhan, pursuing BA LLB from Symbiosis Law School, Hyderabad. The present article focuses on the importance of comparative legal studies. It describes the origin of the term, the classifications and the significance of this method in the legal sphere.
Laws are evolved and developed in many ways. Comparing the laws of different nations or even cultures provides for a unique way to develop laws in a better manner. Comparative law is one such method which describes the comparisons between different legal systems. There are two types of comparisons- micro-comparison and macro-comparison. Micro-comparison refers to a comparison between specific institutions or dealing with specific problems while macro-institutions deal with the entire legal system. Thus, there are different manners in which comparative law can be dealt with.
Comparative law has managed to create its own important space within the last two decades. There are jurisdictional approaches which recognize the comparative law method. In the case of B.K. Seshu v. The Income Tax Officer, the question for the determination of foreign tour expenditure as an admissible deduction or not was raised. The court had analyzed various aspects of law including comparative law. Certain aspects from the book “An Introduction to the Study of Comparative Law” were considered by the court while giving the judgment. Comparative law plays a significant role for not only international relations but to understand a deeper meaning of legal systems as well.
Comparative law is a method for the study of laws of different countries. It includes various processes such as analyzing the laws and comparing them on a different basis. It emphasizes on the legal mechanisms being adopted by countries and compares them. Comparative law is not a legal text or body of rules, it is more of a method. Thus, German and French lawyers use terms like ‘rechtsver-gleichung’ and ‘droit compare’ which means law compare and thus seems to be more appropriate for the subject. It is not a separate branch of law but just a method to analyze different versions of the law. Comparative law is a way to build a basic foundation through which laws all over the world operate. The interconnectivity among the various sectors of different countries has created a situation where consensus between the countries in various aspects becomes important.
There are trade and economic related issues as well as scientific in terms of space exploration where international consensus becomes very important. And for such agreements, the knowledge about the rules and regulations of different countries plays a crucial role. It is also vital for the growth of the e-commerce industry and modern communication technologies where jurisdictional issues remain prevalent and thus the interaction of legal mechanisms is bound to happen. The comparative method is useful for understanding the system of one’s own country and another country. It provides an insight into various political, economic, cultural, social and historical aspects which paves a simpler way to address trade relations or diplomatic relations with the other nations. It also assesses the degree of integration of legal systems and a balance in the global and country level.
The origin of comparative law is debatable on many factors as in many legal systems it existed way before it was being called as comparative law. For instance in Russian legal history, the method dates back to the sixteenth century. Thus, the method existed for a long term, however, the first mention of comparative law is dated back to seventeenth-century where an English author Bacon mentioned the term. Thus, the first adoption of modern comparative law seems to have been done by Rome and England. In 1829, the term was used by Mittermaier and Zochariae in their first legal review which was devoted to studying of foreign law and thus paving its way into the legal system of Germany. At the foundation event of the College De France in 1832, the concept was introduced in France as well.
Presently, Montesquieu is considered as the ‘Father of comparative law’ because of the comparative approach he used in his book De l’esprit des lois. He approached with the method of comparing penal laws in France and England by analyzing the punishments given in both the countries. In the 20th century, the concept got popularized and was used widely due to the expanding trade and commerce relations between the countries. The explosion in inter-trade relations between the countries makes the study of this method very important to understand the laws and legal regulation of other nations.
The concept of globalization further boomed the trade relations and the comparative method was used widely. The first meeting on an international level happened in 1990 in Paris, it was referred to as the first International Congress of Comparative Law where the comparative method was analyzed and acknowledged. The adoption of laws of other countries was done through channeling the principles laid down, the customs, manners and political laws of countries. It became crucial to examine the basic foundation that governs laws. This gave rise to the comparison of different kinds. There were religious laws such as Hindu law and Islamic law and there were regional laws such as in the USA and Australia.
Thus, many aspects were designed to be analyzed upon. The 21st century has seen a more developed nature of comparative law. Cultures, public international law, legal traditions and diplomacy are seen as new dimensions to study and compare upon.
Popularized by Hein Kotz and Konrad Zweigert, the functional method deals with comparing the functions of the law that are in place. This method states that even if the structure of the law is different but they have the same functions and so can be compared. This is based on the principle that the function of the law in any society depends upon the societal problems and as the essence of such problems is similar, the function also remains similar. This method is used to solve issues and compare the nations on the basis of basic functions of law. Issues like theft, rape, murder etc. are such practical problems which are basic in every society and thus comparing such offences of different nations forms a functional method. This method analyses the very core part of the offence i.e. the issues which prevail in the society.
This method is used to determine the similarity and difference between the structure of law. It focuses on the internal structure of the legal system and its core part. The structure of the legal system is analyzed and compared to determine the difference between the implementation of the law. This method helps in understanding the difference between how the legal systems have understood the same problems in different manners.
This is the most used method for comparative study. This method focuses on analyzing the meaning of different aspects of the law. It analyzes how the same concept can be understood in numerous ways. This includes the use of various terms in legal references such as – right, liberty, cheating, defamation, etc. There are concepts and terms which might be the same on definition level but are interpreted and analyzed differently. The method used in this study helps in comparing and understanding the use and interpretation terms which might be similar in core nature but are used differently.
Cultural legal comparison
This method uses the cultural aspect of the nations for comparison. Every law and the legal system is based on cultural and traditional aspects especially civil and common law. Thus, for comparing such laws, an understanding of the culture of the host country is required. It might become challenging for a foreign person to analyze and evaluate the cultural aspect and then linking it to the legal system. Thus, this method acts as a barrier to many countries. The study and understanding of personal laws and practices of marriages and divorces thus can be challenging to compare. However, this study provides an in-depth understanding of the origin and practices of law.
Comparative law has evolved over the years and has provided for a very significant method to analyze the laws of other nations. It becomes important to analyze and understand the different ways in which the legal mechanism can be understood. The core part of every law around the world is based on the same principles of justice and equity. The execution and understanding of the laws, thus, becomes crucial.
Evaluating a better law
Comparative law helps in evaluating a better law. The comparison of different countries helps in analyzing the pros and cons of legal mechanisms and reaching a middle ground for the smooth functioning of better laws. There are issues of liberty and discrimination which are not limited to one space or region. And the application of such principles in other legal systems provides for a new way of thinking and applying such laws in one’s own country. These principles may not be binding in the court of law, but they are used to compare and provide for a clear picture of the policies to be adopted.
It is significant in gaining knowledge for students and professionals. It expands the horizon of legal mechanisms and provides for a chance to acknowledge the different aspects of the same offence or principle. Comparative law has caught the attention of both private and public international law and thus it is also significant in analyzing the approach and method for the relationship between individual and state and from state to state.
It helps in substantiating the application of the law. This is applied in commonwealth countries. As the laws are similar in these countries and the basic principles are also similar, the study of their legal system helps in substantiating the decisions made by other commonwealth countries. Even India follows the common law principles and thus in certain matters the understanding of UK judgments becomes crucial.
Improvement in legal education
A comparative study helps in building analytical and a comprehensive approach to apply legal mind. It helps in creating a distinction to the application of the law based on region and culture. An emphasis on such comparison also helps in chalking out the new policies with better reach and implementation.
Understanding international law
The most significant part of comparative law is the understanding of international law. It not only fosters good international relations but also helps in awareness and strong international cooperation. There are many international legal mechanisms and legal rules which binds different countries together for the operation of a particular aspect of society. Public and private international law, humanitarian law, the law of wars, international criminal law, international humanitarian law and international refugee law are some of the basic parts of international law. The Outer Space Treaty was signed by many countries to regulate space exploration. The study of such international conventions and treaties helps in understanding the relation of different countries to such legal mechanisms. It also fosters better legal understanding between the countries.
It is crucial for understanding trade laws. The comparative method provides for the deep analysis of application of the law. In the international trade system, it is very important to understand the needs and purpose of a law of the other country. Without having full knowledge of the legal aspects trade relations will not be effective.
Unification of laws
The main aspect of comparative law is the unification of laws on an international level. The comparative method provides similarities and differences in the legal system and thus helps in creating a uniform platform to come to a consensus on certain issues. It is an important aspect of economic legal corporations. As the trade policies are crucial, the international trading system is sought to be made simpler with a comparative study.
It is different from the general legal theories and can be used in international legal institutions like the United Nations to provide for analysis of different countries concerning treaties. In case of conflict analysis, it can be used in private international law and could contribute to legal theories as well.
The comparative method has gained much attention in the last two decades. The analysis of the legal systems and a better understanding of private and public international law proves it to be a crucial method. A comparative study is of such significant nature that it allows students and professionals to explore the inner structure of any legal system. This further allows the minds to develop new laws and policies in a better manner by analyzing the existing legal structures of other nations and culture. On a global level, comparative law designs and fosters different aspects of law and questions about the various global and country-level perspectives.
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