Comparative law is an educational discipline in which, the legal systems of different

countries are studied. This has led to the development of various branches of law, such as
constitutional law, comparative administrative law, commercial law, etc. Comparative law is
different from general jurisprudence, public and private international law.

Comparative Law
Comparative law is defined as the study of differences and similarities between the laws of
different countries. It 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 the legal problems, a comparative approach to
the study of laws and legal institutions of two or more countries.

It is not a particular branch of law or a subject, but a process of study of foreign law in
comparison with local law. It is a process of gaining from the law as they obtained 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.

Nature
The nature of law is changing as well as the characteristics of the State. More specially, it
involves the study of the different legal systems in existence in the world, including the
common law, civil law, socialist law, canon law, Jewish law, Hindu law, Islamic law, and
Chinese law. It includes the description and analysis of foreign legal systems, even where no
explicit comparison is undertaken.

The importance of comparative law has increased enormously in the present age of
internationalism, economic globalization, and democratization.

According to Prof. Gutteridge, �It is an unfortunate but generally accepted level for the
comparative method of legal study and research which has come to be recognized as the
best means of promoting the 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.�

Origin of Comparative law

The origin of modern comparative law can be traced back to the Latin language book
�Nova Methodus Discendae Docendaeque Jurisprudentiae� (New Methods of Studying
and Teaching Jurisprudence). The book was written by Gottfried Wilhelm Leibniz in 1667.

Although every legal system is unique, comparative law, through studies of their similarities
and differences, allows for the classification of legal systems, where in �law families� is
the basic level of the classification. The main differences between law families are found in
the source of law, the role of court precedents, the origin and development of the legal
system.

Comparative law in the US was brought by a legal scholar feeling persecution in Germany.
Nowadays, the purpose of a State is the welfare of society and as a result, the modes of the
legislature are changing. The future of comparative law depends on the universal approach
of recognizing the different categories of legal rights.

The origin of comparative law may at the earliest be traced from the middle of the 19th
century. The historical school of thought did not encourage the development or study of
comparative law. The era of codification also did not improve matters, however, some work
was done in Germany by Feuerbach, Gans, and Thibaut. In 1829, Mittermaier and Zachariah
started the legal review denoted to the study of foreign law.

A chair of comparative law was established in France at the College de France in 1832. A
chair of comparative criminal law was also established in the University of Paris in 1846. In
America, there was hostility to anything which was associated with English law. Accordingly,
natural law prevailed and was taken inspiration from the writing of the French Justices.

The relevance of Comparative Law

Comparative law is an academic discipline that involves the study of legal systems, including
their constitutive elements and how they differ, and how their elements combine into a
system. Several disciplines have developed as separate branches of comparative law
including comparative constitutional law, comparative administrative law, comparative civil
law, comparative commercial law, and comparative criminal law.

The objectives of comparative law can be understood with the help of the following points:

1. To perfect the legal system in effect.

2. To attain a deeper knowledge of the legal systems in effect.
3. Possibly to contribute to the unification of legal systems, of a smaller or larger scale.
 
4. The improvement of national legislation was the prime consideration during the
19th century in countries that were codifying or recodifying their legal systems.
Numerous later additions to the Code Napoleon, drawn up in 1804. Many other
countries, of course, followed France�s lead and introduced, into their own systems,
elements of the French Napoleonic codes and institutions of French public law. It is
well worth noticing that a book on French administrative laws was published in
German by Otto Mayer before Mayer felt himself able to write a textbook on German
administrative law.
 
5. In modern times, the spirit of nationalism has often tended to frustrate the
development of an international law that would overcome individual national
differences. One task facing statesmen and jurists is to inject new life into this effort,
adapting it to the exigencies of the modern world. Those engaging in international
trade, for instance, do not know with certainty, which national law will regulate their
agreements, since the answer depends to a large extent on a generally undecided
factor namely, which national court will be called upon to decide the questions of
competence.
Thus, the sole lasting remedy would seem to be the development of international law
capable of governing all legal questions outside the jurisdiction of a single State. Such a
project can succeed only through the medium of comparative law.

The methodology of Comparative Law Structure Method

From a broader perspective, a more structural analysis of legal system may be used while
discussing the approach in social sciences in general, but presenting it as an alternative to
the functional method in comparative law. When elaborating the classifications of �legal
families�, a structural approach has been underlying them.

Differences between legal systems at the level of concentrate rules becomes irrelevant if
they share enough structural commonalities, such as Roman law principles and concept in
private law, to classify as a member of the same legal family, as opposed to other legal
systems and families which don�t share those commonalities. Of course, the selection of
the most relevant criteria for determining �similar structures� partly determines the
outcome.

The Analytical Method

Many legal concepts, in all legal systems, contain a bundle of rights, of a different kind.
Property, for instance, includes a claim liberty and a power. By looking at this deeply, we
may better distinguish differences and commonalities between legal systems as to
apparently similar or different concepts.

For example: Ownership of land V. Fee simple absolute possession, easement V. servitude,

mortgage V. hypotheque used in each legal language. A broad concept such as �trust� in
the Anglo-Saxon tradition is unknown in continental Europe.

The Law-in-Context Method

Almost all the legal jurists agree that comparative research cannot be specific to pure black-
letter comparison of the legal concepts, rules or systems. Even the domestic legal doctrines
take into account, how the law works practically, as far as it gets transpired from the judicial
decisions. Whereas, law-in-context as a method cannot be separated from different
methods, as some forms of analytical methods can be carried out at a more abstract and
conceptual level, rather getting disconnected from the actual social reality. However, this is
not true for other ways of comparisons.

There is a wide range of possibilities in the law-in-context method of research. One may just
mention generally known context element, like the liberal economic world view which
underlies the European Union. Others may use the data from various researches like
anthropological, historical, sociological, psychological etc. They may also carry out such
research on one�s own. Others may set-up large interdisciplinary comparative projects
where various non-legal disciplines are combined together.

The outcome depends on the focus of the research and the knowledge available with the
involvement of researchers, time and financial means while choosing the type and size of
law-in-context approach.
Rodolfo Sacco, in his law-in-context approach, has focused on the �legal formants� (it can
be defined as all elements that constitute the �living law� of a country), i.e. what has made
the law as it is. According to this approach, the legal context is most important, i.e.
legislative and constitutional rules, legal doctrines and case law, however, it also includes
the �implied patterns� and other hidden elements, like influencing the way law is
interpreted and handled. Sacco calls them �cryptotypes�.

Some of these cryptotypes are more specific, while others are general. If they are more
general, it gets harder to identify. In most extreme cases, they may form the conceptual
framework for the entire system. This conceptual framework necessarily plays a very
decisive role in the way law is interpreted, perceived and applied.

The Common-Core Method

By the end of 19th and early 20th century, the comparative lawyers, under the influence of
the positive sciences, wished to find out which legal rules, legal concepts and legal
institutions were common in all societies. Later, the target was limited to the civilized
nations which are at the same level of development, but that did not proved to be very
realistic.

However, in the second half of the 20th century, various innovative initiatives were
implemented with an aim to find out a common-core among various legal systems in some
areas.
Now, the focus shifted on to how the various legal systems are solving the issues rather
than on their legal rules and concepts. The largest project was conducted at Cornell
University from 1957 to 1967, in the area of the formation of contracts.

The creation and development of the European Union along with a tendency to harmonies
the legal provisions within the EU stimulated the research to be conducted into the
common-core of law in Europe, which needed to be identified within each of the member
nations. �Trento Common-Core Project�, as a follow-up of the Cornell project, was
launched in Italy by Ugo Mattei and Mauro Bussani, which was more ambitious in
comparison to the previous project.

The common-core method is basically based on the functional method, and to some extent
it was combined with the law-in-context method. The primary aim of the common-core
method is to search for similarities and differences among the various legal systems in view
of the question, to what extent harmonization is possible among the compared legal
systems.

Functional Method
According to its basic understanding, the functional method never compares primary rules,
but it compares solutions to practical problems with conflicting interests. It is true to say
that there are various universal human attitudes to specific situations, like taking care of
children, respecting property rights, compensating in one way or another to the damages
caused by one�s wrongful conduct, executing contractual obligations and many others.
Therefore, the practical solutions to the problems of similar nature in those areas, in
different legal systems will converge than the legal roads used to reach the desired results.

For example, canon law does not encompass divorce, however, in the current scenario;
almost all the countries with a Christian tradition have legalized the concept of divorce in
their legislation.

In practice, following the popular book on comparative law by Zweigert and Kotz, it is often
taught at various universities that method. It is supported by the alleged conclusion that the
rules and concepts may vary but most of the legal systems solve their legal problems in the
similar manner. However, both the authors never elaborated or applied this method
themselves.
Functionalism is used in various divergent meanings, serving rather different goals, focusing
on similarities, building a system, understanding law, comparing, determining the better law
or the critical appraisal of the legal orders.

Historical Method
The historical method is actually a part of the �law-in-context� method. Here, the
historical origin of the current day laws is compared. A very peculiar feature of historical
method is that it is not possible to avoid it in any comparative research. In some societies, it
is possible to understand the functions of law only when one is aware of the actual origin
and the reason behind �why it is, as it is today�.

It is not by chance that �comparative legal history� has become very popular among legal
historians in the last decade or so. For the comparators, information and sources on legal
history are more easily available than for any other form of law-in-context approaches.

In almost every traditional legal doctrine, most of the books include some historical chapter
or historical reference related to the origin of some legal concepts, legal construction, legal
rules etc. A historical study also makes use of sociological, psychological, economic and/or
other context data.

Historical comparison not only explains the origin and reason for the present law in a
particular society, but it also reveals that similar rules and approaches to law which are
found in a particular legal system were also present in the past.

Types of Comparisons in Comparative Law

There are two types of comparisons in comparative law, which are as follows:
Micro comparison
There is no need for a specific or particular preparation for the purpose of micro
comparison. A person who is a specialist in one national system is well qualified to study the
systems of various other countries of the same general family. The only basic requirement is
access to bibliographical material.

For example, in USA, each State has its own statutes and for some purpose, its own status of
common law. So, an American lawyer needs to be micro-comparators as he is required to
deal with the system of 50 states and federal law into daily account in his practice of law.
The same logic is true for the Australian, Indian or a Kenyan lawyer, who is expected to take
into account not only his own national system but also the laws of England and of other
common-law jurisdictions in the Commonwealth. However, French comparative law
students find it difficult to contrast the laws of certain countries, as they are confined to
study only French, German, Italian and Dutch law which are similar in tradition and structure
and are meant to serve a similar type of society.

Macro comparison
In macro comparison, the situation is completely different. ln macro comparison, no
comparison is possible without prior identification and thoroughly mastering the
fundamentals of the law systems as they differ from place to-place. It is expected from a
jurist to keep his/her training aside and should begin to reason or ask questions according
to new criteria.

If a jurist belongs to France, Britain or USA, then he/she must recognize that in some folk
societies of East Asia, the upright citizen never crosses the threshold of a courtroom and no
subjective right is acknowledged. Instead the citizen�s behaviour is governed by the rites
and rituals handed down from the ancestors, which ensure the approval of the
communality.

Similarly, if a Western jurist wants to understand the Islamic law or Hindu law, then he is
required to realize that law is contained in the rules of conduct, which are laid down by any
particular religion for its followers only. These rules which create obligations and not rights
are ranked above all worldly matters. They should not be confused with the regulations
which are enacted and ratified by the concerned governments.

Also, if a Western jurist compares his system of law with that of a communist State, he/she
must make one thing very clear that �on no account does the citizen of a Marxist-Leninist
State regards the rule of law as an ideal for society.

It is a mandatory for a French or German jurist to shift the legal gears prior to grasping the
vital importance that the American or English lawyers traditionally attach to the concept of
due process and the rules of evidence. Procedural rules are secondary to substantive law.

The specialist of macro comparison is expected to bring out the structural differences which
exist between various legal systems. Accordingly, the Anglo-American jurist is expected to
be aware of the importance of the distinction between private and public law, i.e. between
law involving the individuals and law involving the State. A Roman jurist must, on the other
hand, appreciate the significance of the concepts of common law and equity.

A jurist who belongs to a centralized country must familiarize himself with the distinction
between laws of secondary jurisdictions (provinces, states, and so on), and the federal law,
which means a distinction that is of fundamental importance in many countries across the
world.

If a jurist belongs to a country like France or England which acknowledges the sovereignty of
the Parliament, then he is expected to give due weightage to the importance of
constitutional law in countries that permit courts to review the constitutional validity of
legislative acts, particularly in countries like the USA and Germany. The jurist in a
�bourgeois� country is supposed to appreciate the policy of collective ownership of
means of production in socialist States.

Problems and Concerns in Comparison

Comparison is a very dynamic subject. Ideals and principles of government are not universal
in nature.

Some of the common problems and concerns in comparison are as follows:

1. Government and politics is decided by the situation of a country and situation varies
from one place to another, thus for comparison, there should be a similar condition.
2. There are different ideologies in government and politics, which act as a obstacle in
comparison.
3. It is difficult to think that any comparison is done without biases, intellectual�s talk
toward their ideology, nation, etc.
4. Government and politics cannot be truly compared, as for the comparison, the
subject needs to be empirical.
5. For comparison, there is a requirement of skilled manpower, time, and also the
capital.
6. Different forms of government assert that their system is superior and better, which
is one of the most prominent problems in comparison.
7. The criteria�s which are used for the comparisons, are not accepted by all the
stakeholders.
8. Many times, it has been noticed that government do not allow their system to be
studied by outsider.
9. Inbuilt prejudice in the mind of personnel who carry out comparison is a big
concern.