COMPARATIVE LAW AS AN AID TO LEGAL REFORM

SUBMITTED BY

VRIDHI KASHYAP

UID- SF0119057

1st YEAR, 2nd SEMESTER

COURSE

COMPARATIVE LEGAL SYSTEMS - 2.5

FACULTY IN CHARGE

MR. SAHEB CHOWDHURY

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM

25th OCTOBER, 2020

INTRODUCTION

Law, of course, exists in society and for society's needs. It is a man-made construct to facilitate
social activities. Law is inconceivable without society. Societies vary greatly, and so do legal
rules. A perennial question is "Do legal rules reflect a society's desires, needs and aspirations?"
The answer which is ordinarily given or is just assumed is positive though minor qualifications
are usually urged. And yet, the two most startling, and at the same time most obvious,
characteristics of legal rules are the apparent ease with which they can be transplanted from one
system or society to another, and their capacity for long life. With transmission or the passing of
time modifications may well occur, but frequently the alterations in the rules have only limited
significance.1 For this purpose of transplantation and transmission, comparative research comes
into play. Legal research of the said kind aids legal reform in the legal systems. When it comes to
the tools of law reform, research is one tool that is considered most essential for any project of
law reform. When research is undertaken as a part of the process of law reform, it is undertaken
with a definite end, namely, making suggestions for improvements in the law on concrete and
easily identifiable matters and the formulation of those proposals in precise term 2. Even while
framing a policy, reliance on other jurisdiction and other laws of countries are placed. This
process ensures a wider interpretation of any law and helps the policymakers to be up-to-date
with the societal developments and community values, and bring in more clarity into the law.
Importance of comparative law can be traced from the time when countries adopted laws of other
countries while framing their constitution.

“Law should be responsive to and accord with the needs of modern society”

Lord Gardiner

COMPARATIVE LAW AS AN AID TO LEGAL REFORM

1
Alan Watson, Comparative Law and Legal Change, 37, The Cambridge Law Journal, 313-336 (1978).
2
P. M. Bakshi, Legal Research and Law Reform, 24, Journal of the Indian Law Institute, 391-41 (1982).
Comparative law is generally accepted label for the comparative method of legal study and
research which has come to be recognized as the best means of promoting community of thought
and interest between the lawyers of different nations and as an invaluable auxiliary to the
development and reform of our own and other system of law. The advancement of the society
gives birth to various new modes of illegal activities and behaviors which much be covered by
the existing national laws. From this research we will understand the history and origin of
comparative legal science. The development also went through a long road and in this paper the
growth of comparative legal science during 19th and 20th century has been described. 3 The
national law or territorial legislatures will be subject to comparison by the proposed mechanism.
Without understanding all the deep root factors behind passing legislation, it is not easy to draw
a clear picture about any certain legislature or to measure its functionality. As a result a
systematic analysis and examination is necessary before comparing between different
legislatures. "Comparative law is an unfortunate but Generally Accepted label for the
comparative method of legal study and research which has come to be recognized as the best
means of promoting community of thought and interest between the lawyers of different nations
and as an invaluable auxiliary to the development and Reform of our own and other system of
law”4. Different purposes are ascribed to Comparative Law: it should inform national
lawmaking, assist judges in the resolution of difficult questions, provide a basis for legal
unification or harmonization, or simply increase knowledge and extend awareness, especially in
legal education. All these are purposes that legal science should fulfill in general. The key act in
comparison is looking at one mass of legal data in relationship to another and then assessing how
the two lumps of legal data are similar and how they are different. Comparative law is the
systematic application of the comparative technique, a discipline and a method by which the
values of human life are known and evaluated. It is not a law in itself but a method of looking at
legal problem, a comparative approach to the study of laws and legal Institutions of two or more
countries. It is not a particular branch of law nor a subject but a process of study of foreign laws
in comparison with local laws. It is a technique of looking one's own law through the mirror of
analogous laws of other countries. It is a process of gaining from the laws as they obtain in
foreign countries. It ascertains the differences and similarities in the legal rules, principles and
3
Arif Mahmud, The Future Of Comparative Law: A Legal Mechanism To Compare The Functionality Of Different
Foreign Legislatures, Daffodil International University, (2018).
4
M. Schmitthoff, The Science of Comparative Law, 7, (1939).
Institutions of two or more countries with a view to finding solutions for local problems. It helps
in establishing harmonious relations with other countries. The nature of law is changing as well
as the characteristics of state. Now a day the purpose of a state is to welfare the society and as a
result the modes of legislature are changing. The basic human rights protection is the first
challenge we have to face when we are talking about the whole globe. Without regular and
effective legislature comparison it’s not easy for the parliament to pass advance laws and to find
out the weaknesses of any existing legislation. The future of comparative law depends on the
universal approach of recognizing different category of legal rights. Some basic human rights are
so vital in nature that it can be presumed that there might be an International authority to enforce
those rights without any discrimination. In that sense and also present sense human rights are not
subject to legal comparison but the standard must be universally same. There will always be
differences between states in many sectors but for ensuring the universal protection of human
rights as well as other rights the system followed by other civilized and neighbors nations must
be analyzed and compared for strengthening the force of national legislature. 5  The study of
comparative law is vital to the basic understanding of international legal developments. 6 Its
utility is great in law domain of commercial law. It is useful to the legislator and law reformers
alike. It has great value in International relationship. Its utility is great to the community at large,
both in national and International spheres. It provides framework to a legal practitioner for
handling legal problems involving foreign law. Comparative process is useful in Comparative
jurisprudence, Comparative Legal history, Constitutional and Administrative law, Criminal law,
Labor Law, Law of obligations, Commercial Law, Rules of procedure, Legislation and Law
Reforms as also International Law and International relations. Law comparison can provide very
useful service to interpret national law. This is especially so when foreign solutions have been
taken over in the national legal order. This is of course most striking in the case of so called
‘legal transplants’, where legal solutions developed abroad are taken over. But the reception of
foreign law may also be more discrete and complex, elements of a national approach being taken
e.g. from various countries. Also then the interpreter of national law will be well advised to look
into the foreign legal system(s) which served as the source for the national law which is to be
interpreted. Another occasion where it can be very useful to do some law comparison in order to
interpret national law, is when the latter seems to be silent on the issue at stake. Law comparison
5
Arif, supra note 3, at 14.
6
Arif, supra note 3, at 5.
is also essential to correctly interpret international and supranational law. This proceeds already
from the fact that the source of this law may be rooted in the compromise by people with a
different legal background.

According to Sir Henry Mine, Chief function of Comparative Jurisprudence is to facilitate

legislation and the practical improvement of law. The legislator draws largely from a comparison
of laws of different countries. A law reformer also seeks great assistance from comparative
studies of the laws of various countries. The subject of study of foreign legislation has received
official sanctions in various countries. On the continent the French Government have established
a departmental Committee charged with this task. The German law dealing with the trading
companies and partnerships is also based on a study of trading laws prevalent in foreign
countries. In India the company legislation, the Partnership Act and other mercantile laws are
based on English Laws. The Workmen's Compensation Acts in different countries are also based
on a comparative study of the problems and legislation in different countries. 7 This approach
owes something to the strand of the natural law tradition which suggests that comparative study
provides one possible method for discovering moral principles which are both eternally valid and
universal. Among Roman jurists, for instance, there was a tendency to treat ius gentium, which
comprised 'the law applied by all nations', as synonymous with ius naturale (that is, the law
which ought to be observed by all mankind). However, even if one places skepticism aside and
concedes that universally accepted principles could be revealed through comparative study, it
does not follow that such principles would have normative significance. Although the fact that a
particular principle is to be found in a large number of different legal systems may suggest that it
has some intrinsic value, comparative lawyers have not demonstrated that they can escape from
the logical distinction between 'is' and 'ought'.8 It is important to consider a distinction between
comparative law in its 'theoretical-descriptive form', the principal aim of which is 'to say how
and why certain legal systems are different or alike', and comparative law in its 'applied version'
this aims ‘to provide advice on legal policy’. With regard to comparative law in its 'theoretical-
descriptive form', the task of the comparatist is not unlike that of the legal sociologist, whose aim
7
Arif, supra at 3, at 10.
8
Jonathan Hill, Comparative Law, Law Reform and Legal Theory.
is the objective explanation of legal phenomena. In this respect comparative law might be
thought to be a science, albeit a social science. (There are, of course, severe difficulties in
establishing the objectivity of both natural and social sciences.) However, even if it can be
conceded that comparative law in its 'theoretical descriptive form' is scientific and objective, it
cannot automatically be concluded that comparative law in its 'applied version' can generate
values which transcend subjectivity.9 But it can be asserted that comparative law, by revealing
the ways in which legal systems are similar, helps 'to deepen our belief in the existence of a
unitary sense of justice'. Comparative law also points to 'the universality of legal science and the
transcendent values of law'. As for the goals of comparative law, they say:

What we must aim for is a truly international comparative law which could form the basis for a
universal legal science. This new legal science could provide the scholar with new methods of
thought, new systematic concepts, new methods of posing questions, new material discoveries,
and new standards of criticism.

Social, Religious, Political, and Economic conditions in a country necessitate varying legislative
enactments suiting the condition of the Country. In this sense of law the law of crime varies from
country to country. But still comparative law furnishes material for unifying criminal law in
matters where such unity can be obtained. The penal laws of different countries provide useful
material for the legislator and the law reformer alike. Steps taken to combat crime in one country
and the result achieved will be of great you too will be of great assistance to them in other
countries. This branch of law aims to improve conditions of labor. A comparative study of labor
laws of different countries is, therefore of great advantage. As a country advances and is more
and more industrialized, the problems of labor which crop up at a very much is similar in kind;
and as such a unified labor law will be the great utility10.

Comparative law .... has its own tasks in its own field. Assistance to critical jurisprudence [i.e.
law reform] is only one of its functions. It is neither its sole, nor its main, function.11

An increasingly globalised world gives us the opportunity to learn from the experiences of other
similarly positioned countries. Foreign law and comparative domain expertise is being

9
Id.
10
Arif, Supra note 3, at 13.
11
Ernst J. Cohn, Comparative Jurisprudence and Legal Reform, University College London, (1946).
increasingly recognised as an important source of information. Indian law-making often does not
benefit from progressive developments in other jurisdictions, and it is desirable that
contemporary comparative developments are systematically factored into this process. Reforms
in law is required whenever a society transforms. Social transformation occurs due to several
factors such as changes in technology, demography and ideology, changes in political life and
economic policy and in legal principles or institutions. Social life has undergone changes
because of communication revolution. Hence to keep in pace with the technological
development, Law has to be competent for detection of various crimes and prevention of the
same also. New acts like Information Technology Act has been brought, rules of evidence has
been amended to recognize electronic transaction. Methods of providing remedies have
undergone tremendous change with the growth of electronic commerce, cyber crime and internet.
Articial insemination, test tube babies, surrogate motherhood and cloning, prenatal detection
technique and abortion have challenged the values of family life. Apart from these, law plays a
pivotal role in protecting the environment. The technological growth has created great pressure
on the degradation of environment. As a consequence of this the legal system had to alter its
legal strategies and introduce new principles, doctrines, mechanisms etc to protect the
environment, human habitation and the civic life. Technology is a blessing and curse, to which
law and society have to respond aptly. Apart from society and environment transformation also
happens in the economics sector, culture religion morality social outlook and very many areas.
Here again law weaves its way through economic life creating possibilities for economic
development and placing constraints on the form of development through very many statutes,
Ex: Intellectual Property Rights.12

CONCLUSION

Comparative law is the systematic application of the comparative technique, a discipline and a
method by which the values of human life are known and evaluated. It is not a law in itself but a
method of looking at legal problem, a comparative approach to the study of laws and legal

Dr.S.Durgalakshmi, Mrs.R.Ammu, Law as An Instrument Of Social Change And For Empowerment Of The
12

Masses, 5, IJAR (2015).

Institutions of two or more countries. It is not a particular branch of law or a subject but a
process of study of foreign laws in comparison with local laws .It is a technique of looking one's
own law through the mirror of analogous laws of other countries. It is a process of gaining from
the laws as they obtain in foreign countries. It ascertains the differences and similarities in the
legal rules, principles and Institutions of two or more countries with a view to finding solutions
for local problems. It helps in establishing harmonious relations with other countries. 13 The
Advance comparative research and mechanism can help to get comparative legal data regarding
a wider a wider and narrow aspect of foreign legal system or particular legal issues. One of the
salient feature of this mechanism is, in case of deep level comparison it will help us to
understand the common cores, distinctiveness and point of changes between foreign legal
systems. Not also eligible to provide advance suggestions. Comparative law should envisage a
society which is whole and must take on broader missions. We need to explore more deeply
developed and nontraditional cultures. We need to step outside of our own native predispositions
to see if we can learn more from those influenced by different cultural patterns. Comparative law
should now be set up to serve a new and important role in the twenty-first century. Through
comparative law we can embark on a new course as we try to figure out what to do in our
modern, increasingly globalized world. Comparative law has a large role to play here. We need
to take on these new tasks as a way to improve human welfare and our legal order, whether
national, regional, or international. Understanding law and culture is the key to understanding
people, and in the end, understanding people is what we need to do for making the law more
effective for the welfare of the society 14. The society is changing everyday and to keep pace with
the evolving society, we need more adoptive legislatures capable of less complex adaptation
mechanism and to do so there is no alternative of legal comparison because we live in a global
village.

13
Arif, Supra note 3, at 28.
14
Id.