Comparative Law (1)


NATURE AND DEFINITION OF COMPARATIVE LAW

A. Meaning of Comparative Law

Comparison is an important source of knowledge and understanding. It is said to be a technique, a discipline, an implementation and a method by which the values of human life, relations and activities are known and evaluated.

The importance of comparison has received recognition in all quarters and by everybody in the field of study and research. Its worth is reflected in the works and writings of the scientist, historians, economists, politicians, jurists and others engaged in investigations and research activities. Whatever the notions, ideas, principles and theorist, they are able to formulate, is said to be the outcome of comparative method of study. This is also true of law.

The various contributions of legal thinkers and writers are by all means the results of their comparative approach. As jurisprudence is regarded as the science of law, its essential feature is that it is a particular method pf study, not the law of one country, but the general notions of law itself,[1] that is the law of almost all the countries of the world, these legal philosophers and jurists have propounded their own line of thinking towards the study of law, its philosophy, functions and institutions after making extensive study of their own legal system and the system of various other countries of the world, by comparing each from one another.

This approach in the field of the study of law has given rise to a new branch of legal study, which is called by the name of Comparative Law and which sets put a method of studying laws of different nations in a comparative manner.[2] Various others associated with the making, application and administration of law also find in this method a shape for their guideline, a tool for workmanship and a devise to meet with a situation, which may conceivably arise in the field of their activity, as by comparing their own laws with the laws of other legal systems they can amend, modify and add whatever is required in the interest of penetrating further in the sphere of international law, legal studies, trade and commerce, diplomatic and cultural relations with a stretching hand and now its importance is not a matter of course, but a reality in the service of mankind, society and nations.

B. Nature of Comparative Law

Comparative law, in its most simple sense, denotes a method of study and research, by which laws and legal institutions of two or more countries are compared. It is concerned with the examination of the contents of different legal systems in their answer to the solution of various legal problems. It is a technique by which certain ends can be achieved by looking to the laws of various nations in comparison with one’s own laws.

Comparative law is not a subject but a method of study. It is regarded as a process of studying foreign laws in comparison with local laws. Its work is to ascertain the differences and similarities in the legal rules, principles and institutions of two or more countries with a view to provide solutions for local problems. It is a discipline to maintain a social order by the knowledge and experience of others living in a foreign country.[3]

C. Definition of Comparative Law

A good number of writers have made attempts to define the term ‘comparative law’ but most of them have only highlighted the purposes and functions of comparative law. About the nature of comparative law no successful attempt has been made. In fact, comparative law is a subject of recent origin and growth and there are many controversies regarding its nature. Gutteridge has very aptly remarked:

“Legal definitions are notoriously satisfactory and apt to lead to controversies, which are barren of any result. This, in particular, is the case, when any attempt is made to define comparative law, since the subject-matter being non-existing is one which defines definition. The consequence is that definitions of comparative law, which have been framed does not deal with the nature of comparative law, but only with its object.”[4]

Despite all difficulties for the definition of the term, writers and jurists have given their definitions in their own way. Most of their definitions reveal that they have included therein only the functions and purposes of comparative law, rather than its form and nature. Since comparative law is a vague term with an undetermined scope the writers in their definitions have only indicated its achievements in various spheres of social and international relations.

Some of the important definitions are given below:

According to Levy Ullman:

“Comparative law has been defined as a branch of legal science, whose object it is to bring about systematically the establishment of closer relations between the legal institutions of different countries”.[5]

Holland says:

“Comparative law collects and tabulates the legal institutions of various countries, and from the results thus prepared the abstract science of jurisprudence is enabled to set forth an orderly view of the ideas and methods, which have variously been realized in actual systems.”[6]

James Bryce says:

“Comparative method collects, examines, collates the notions, doctrines, rules and institutions, which are found in every developed legal system, or at least in most systems, notes the point in which they agree or differ and seeks thereby to construct a system, which shall be natural, because it embodies what men, otherwise, unlike have agreed in feeling to be essential, philosophical because it gets below words and names and discovers identity of substance under diversity of description and serviceable, because it shows what particular means the ends, which all or most systems pursue have been best attained.[7]

A German writer Bernhoff points out:

“Comparative law sets forth how people of a common origin have independently developed the traditional legal conception; how people modify the institutions which it inherits according to its own views; and thus how, without any material connection, the legal systems of different nations develop according to common evolutionary principles. Briefly it attempts to discover the idea of law in the several legal systems.”[8]

Julious Stone remarks:

“Comparative law seeks to describe what is common and what is different in different legal systems or to seek a ‘common core’ of all legal systems.”

Rheinstein says:

“The term (Comparative Law) should be reserved to demonstrate those kinds of scientific treatment of law which go beyond the taxonomic or analytical description of technical application of one or more systems of positive law.”[9]

Bartholomew points out:

“Briefly comparative method may be described as far as legal studies are concerned as that method of study, whereby two or more legal systems, concepts, institutions or principle are investigated with a view to ascertaining the differences and similarities between them”.[10]

Some of the writers have identified the term “comparative law” with comparative jurisprudence. They have attempted to define the term “comparative law” under the name of comparative jurisprudence. Hence such definitions should also be considered here:

Sir Henry Maine says:

“The chief function of comparative jurisprudence is to facilitate legislation and the practical improvement of law.”[11]

Salmond points out:

“What is known as comparative jurisprudence – namely, the study of the resemblance and differences between different legal systems – is not a separate branch of jurisprudence co-ordinate with the analytical, historical and ethical, but is merely a particular method of that science in all its branches. We compare English law with Roman law for the purpose of analytical jurisprudence, in order to comprehend better the conceptions and principles of each of those systems; or the purpose of historical jurisprudence, in order that we may better understand the course of development of each systems or for the purpose of ethnical jurisprudence, in order that we many better judge the practical merits and demerits of each of them. Apart from such purposes the comparative study of law would be futile.[12]

Pollack remarks:

“It makes no difference whether we speak of comparative jurisprudence or as the Germans seem inclined to say of the general history of law.”[13]

Prof. G.W. Keeton says:

“Comparative jurisprudence considers the development of two or more systems of law. The term has more than one meaning. The science may have for its object the discovery of those legal rules, which are common to the legal system studied; or again it may discuss those relations of individuals, which have legal consequences, together with an enquiry considered. More frequently comparative jurisprudence selects various legal topics and explains fully their method of treatment in two or more systems of law.”[14]

Using the term of “Comparative Legislation” instead of “Comparative Law” Randal observes:

“Comparative legislation is in the nature of subterfuge, seems to have been devised in order to emphasise the practical as opposed to the academic aspect of comparative legal research, and stresses upon the two features of the results which may be obtained by the use of comparative method. The first of these results is the collection and distribution of information as to foreign law. The second is the utilization of the experience gained in other systems of law for the purpose of law reform.”[15]

To be Continued…

References:

[1] G.W. Paton, A Text Book of Jurisprudence, 2nd Ed., p. 2.
[2] Nomita Aggarwal, Jurisprudence: Legal Theory, 6th Ed., p. 363.
[3] Ibid., p. 364
[4] Gutteridge, Comparative Law, 2nd Ed., p. 2.
[5] “Brance seciale de la science jurisdique” as quoted by Gutteridge in Comparative Law.
[6] Holland – Jurisprudence, 13th Ed.
[7] Studies in History and Jurisprudence.
[8] Uber Zwech Und Mittal de Verlerchenden ROchtswissense chaft, as quoted by Aggarwal in Jurisprudence.
[9] Comparative Law – Its Functions, Methods and Usages, 22 Ark. L.R.
[10] Comparative Law – 5 Indian Law Review, p. 86.
[11] Village Communities, 3rd Ed., p. 3.
[12] A Text Book of Jurisprudence, 12th Ed., p. 7.
[13] The History of Comparative Jurisprudence, Jr. of C.L. (N.S.) Vol V. (1903), p. 74.
[14] The Elementary Principles of Jurisprudence, 2nd Ed., p. 16.
[15] Sir Macdonnell and the Study of Comparative Law, J. Comp. Legal Vol. XII, 2nd Ser., 1930, p. 189.

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