The ‘Corpus Juris Civilise’, which represented the Roman law, contained utterances of the emperors and also the edicta issued directly by them as head of the State, or the rescripta, viz., answers returned by the emperors when consulted on questions of law by the parties in a suit or by magistrates.
The Romans describes their legal system as consisting of two ingredients, “All nations”, says the Institutional Treatise, who are ruled by laws and customs, are governed partly by their own particular laws, and partly by those laws which are common to all mankind. The law which a people enact is called the Civil Law of that people, but that which natural reason appoints for all mankind is called the Law of Nations, because all nations use it. The part of the law “which natural reason appoints for all mankind” was the element, which the Edict of the Preator was supposed to have worked into Roman jurisprudence. Elsewhere it is styled more simply Jus Naturale, or the law of Nature; and its ordinances are said to be dictated by Natural Equity (naturalis aquitas) as well as by natural reason.
On the other hand, the common law of England was all open for the development of comparative law. The first among the promoters was Leibnitz who mad an attempt to survey the laws of the civilized countries, though he was not very successful in his attempt nevertheless it has its academic value. In England, Montesquieu is regarded as the founder of comparative law because he was the first to realize that ‘rule of law’ should not be treated as abstraction, but must be regarded against a background of its history and of the environmental in which it is called upon the function’.
In his famous book “Del Espirit des Laws” of the world ultimately he failed to achieve his goal. The origin of comparative law may at the earliest be traced from the middle of the nineteenth century. The idea of studying foreign law was encouraged by jurists of historical school of law. Not only that the movement of codification of law also did not do anything in favour of study of foreign law. Some attempts, however, have been made in France and Paris where a chair of comparative law and comparative criminal was established in 1832 and 1846.
In America there was total hostility towards anything which was associated with English law. Accordingly, American legal system completely ignored the study of English law. However, they did take a little support from the French legal system. Much of the pioneering work in regard to comparative law was done in England. Lord Bacon and Mansfield were quite instrumental in this respect. Henry Maines’s Ancient law (1861) was the great eye-opener towards the development of comparative law. He introduced a correlative method into the history of institutions. In 1894 the Quain professorship of comparative law was established at University College, London. The English Society of Comparative Law was found in 1895.
The twentieth century marks the realization that the policy of legal isolationism is not a good policy and is not conclusive to the growth of a unified law. In recent years various institutes have been established for the purpose of carrying on research. Efforts are being made to promote this subject but still major breakthrough regarding the development of this subject has not been seen. However, its utility and importance are being realized. The earlier doubts regarding its existence are almost over, now it is regarded as a branch to legal and technique.
A. Classification of Comparative Law
1. Prof. Lambert’s Classification
Prof. Lambert classifies Comparative Law under three heads:
a. Descriptive Comparative Law
b. Comparative Legal History
c. Comparative Legislation
Descriptive Comparative Law is the inventory of the systems of law of the past and recent as a whole as well as of the individual rules with these systems, established for the several categories of legal relations. It lays down the differences between the laws of two or more legal systems.
Comparative Legal History seeks to bring out, by the establishment of a universal history of law, the rhythms or natural laws of the succession of social phenomena, which direct the evolution of legal institution.
Comparative Legislation or Comparative Jurisprudence tries to describe the common trunk on which the recent national development of the study of law and of the awakening of an international legal consciousness.
2. Wigmore’s Classification
Wigmore divides Comparative law under three heads:
a. Comparative Nomoscopy
b. Comparative Nomothetics
c. Comparative Nomogenetics
Comparative Nomoscopy ascertains and descrives other systems of law as facts. It is concerned with the formal description of law in different legal systems. Comparative Nomothetics seeks to ascertain the politics and relative merits of different institutions with a view to amend the laws. In other words, it makes the assessment of the relative merits of the rules under comparison. Comparative Nomogenetics traces the evolution of various systems in their relation to another on chronology and causes. In other words, it is concerned with the study of the development of systems of law in relation to one another.
3. Kaden’s Classification
Kade clasiffies Comparative law as:
a. Formal Comparison (Formalle Rechtsver Gleinchung)
b. Dogmatic Comparison (Dogmatische Rechtsvergleichung)
Formal comparison denotes the comparative investigation of the sources of law, e.g., the weight given in different systems to statue law, case-law and custom and the application of differing methods of legal techniques in such respects as the interpretation of statues. This method, in other words, looks the different systems of statue law and custom and the different techniques of interpretation of statues. Dogmatic comparison is concerned with different solution of a problem in different systems of law. This method ascertains the application of the result of comparison in the legal problem of a country.
4. Kantorowicz’s Classification
He classifies Comparative Law as follows:
a. Geographical Comparative Law
b. Material Comparative Law
c. Methodical Comparative Law
Geographical Comparative Law implies the parallel investigation of the general structure of the law in several systems. Material Comparative Law is the comparative investigation of the rules relating to a given subject-matters. Methodical Co-operative Law is that of the process, which is not purely analytical, but leads to a systematic view of the subject-matter.
5. Max Rheinstein’s Classification
Rheinstein has given two classifications:
Macro-comparison, according to Rheinstein, “is concerned with comparison of entire legal systems, such as, Anglo-American Common Law and the so-called Civil Law or wihin the Civil Law, the family of so-called Romanist Law, i.e., based on French and German.
6. Gutteridge’s Classification
Gutteridge classifies Comparative Law under two heads:
a. Descriptive Comparative Law
b. Applied Comparative Law
Descriptive Comparative Law is concerned with the description of different legal facts as found in different comparison. The main function of Descriptive Comparative Law is to state only the divergences between the two or more systems to an individual legal problem. It is unworthy of being called as a science or a legal research. Gutteridge says:
“Descriptive Comparative law differs from Applied Comparative law because it is confined to an analysis of variations between the laws of two or more countries, and is not directed to the solution of any problem either of an abstract or a practical nature. The comparison has no other aim than that of furnishing information and it is no concern of the person undertaking it to ascertain what use will be made of the result of his investigation.”
Applied Comparative law is concerned with the examination of the legal facts with the purpose of obtaining the results. It is worthy of being dignified as a legal research, because it lays down the conclusions, drawn from the comparison of different legal facts after making proper analysis and careful study. Applied Comparative law is practical in nature. It is a method to achieve certain aims, such as, law reforms, unification of laws, etc. Its process is not easy and only the experienced lawyers and experts can employ this method. In the words of Gutteridge:
“The use of comparative method with a definite aim in view other than that of obtaining information as to foreign law may conveniently be called ‘Applied Comparative Law’. The aim in question need not be of a practical nature: it may, for instance, take the form of a comparison carried out either to enable the legal philosopher to construct abstract theories of law, or in order to assist the historian in tracing the origins and evolution of legal concepts and institutions. The distinguishing feature of this form of comparison is that it does not consist of mere description of the differences which exist between the concepts of rules, or institutions, of law under examination, but probes more deeply into the matter with a definite purpose in view. The investigator must, first of all, ascertain how far these differences are fundamental or rely accidental; secondly, he must determine the causes underlying such differences and their relation to the general structure of the system in which they arise; and finally, he must examine the operation of the rules in practice having regard to the legal and social environment in which each of the systems is called upon to function.”
7. Institutional and Functional Comparison
The uncertainty in the nature and scope of comparative law is so serious that more classifications can be added in its study. Considering the activities of comparative law and its field of the study, the subject within its scope is said to have undertaken into two or more legal systems, known as Institutional Comparison and the other Functional Comparison which is concerned with the comparison of the detail rules, i.e., the function of law and its institutions.
Institutional comparison, known as structural comparison, is the comparison of the institutions with which law is connected. In this method one deals with such phenomenon as the system of courts, constitutions, law, etc. This method of comparison is made to clarify and testify the similarities and differences of the institutions, which has made law operative in the countries under study. After adopting the comparison of this type if one goes further and tries to determine the causes of specific characteristic of the institutions, he puts himself in the sphere of functional comparison. Functional comparison is the study of the processes and contents of law and the actual performance of the functions which various legal systems offer. Here the actual rules of law with their causes and effect are studied. Thus if one examines a particular problem of criminal law of India with that of foreign country the comparison is functional.
B. Values and Purposes of Comparative Law
The utility, value and purposes of comparative law, in broad outlines may be given as follows:
1. Better understanding of law;
2. Aid to the Legislature and other law-reform agencies;
3. Help to Courts of law;
4. Help to practicing lawyers;
5. Utility in foreign trade and economic relations
There is no doubt about the fact that there are some definite advantages of the study of comparative law. However there also some important weakness of the subject which cannot be ignored, there are:
1. A difficult process;
2. Non-availability of materials;
3. Lack of experts;
4. Language difficulty;
5. Difference in words and actions of law;
6. No standard technique of comparison;
7. Misleading results.
There are several points to remember regarding the topic on Comparative Law (1) and (2) in the following:
1. Comparison is an important source of knowledge and understanding.
2. Comparative Law denotes a method of study and research by which laws and legal institutions of two or more countries are compared.
3. Comparative Law deals with scientific enquiry as well as it is a method of study;
4. The chief function of comparative jurisprudence is to facilitate legislation and the practical improvement of law.
5. Much of the pioneering work in regard to comparative law was done in England.
6. Different jurists have given different classifications of comparative law.
7. Gutteridge’s classification of comparative law is considered as one of the most balanced one.
8. There are number of objectives of comparative law. The most important and widely accepted objective of the comparative law is to increase the understanding of legal system of one’s own country.
9. There are some weakness of comparative law which is ultimately hampering the growth of comparative law.
10. Comparison is a different process. It requires special kind of aptitude, training and qualifications.