Comparative Public Law

 PUBLIC LAW- AN INTRODUCTION

In general terms, a state is defined as an independent political entity, occupying a defined

territory, the members of which are united together for the purpose of resisting external force and
preservation of internal order[1]. This definition highlights the ‘police functions’ of the state.
However, the modern-day functions of the state are not limited to mere policing, rather, the state
has become a ‘welfare state’ wherein it plays a key role by protecting and promoting the socio-
economic development of its citizens, right from cradle to the grave.

For the purpose of discharging the wide range of functions entrusted to the state, it becomes
necessary to establish certain basic organs or instrumentalities, which would act on the state’s
behalf and assist the state in fulfilling its obligations. This highlights the need for different
organs of government and the subsequent need for constitutional and administrative law to
regulate the functioning of such organs.

With respect to discharging of functions by state, the law of the land can be divided into two
broad headings, law governing the state and its relationship with the citizens, and the law
governing and regulating the affairs of the citizens. Constitutional Law, Administrative Law and
Public International Law come under the ambit of the former category of law i.e. the public law,
and the law relating to Contracts, Torts, Property come under the ambit of the latter category i.e.
the private law.

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Therefore, public law can be considered as the body of law which governs the state and its
organs and the relationship of private subjects (including both individuals and artificial legal
personalities) with the state and its organs (legislature, executive, and judiciary).

 COMPARATIVE LAW- MEANING AND DEVELOPMENT

Comparison is a logical and inductive method of reasoning which helps an individual to

objectively identify the merits and demerits of any norm, practice, system, procedure or
institution, as compared to that of others or their own. People indulge in comparisons in day-to-
day transactions as well, while purchasing goods or services, investing, learning, choosing an
appropriate leader for themselves or in their personal lives.

Comparative study becomes a tool that assists an individual in arriving at a decision. It is often
used in various disciplines, both in natural and social sciences.

With reference to the field of law, comparative analysis involves an evaluation of human
experiences occurring in the legal regimes of different jurisdictions in different situations. The
comparative study of laws of different states is termed comparative law. It is not a legal text or
body of rules, rather more of a method.
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Montesquieu in his book De l’esprit des lois[2] adopted a comparative approach by analyzing the
punishments specified under the penal laws in France and Engalnd. Therefore, he is often known
as the ‘Father of comparative law’. Further, Professor Bernard Schwartz is considered one of the
first in the common law countries to realize the growing importance of comparative law in the
modern world[3].
In modern times, globalization and liberalization led to a boom in the trade relations of different
states. This led to the creation of interconnectivity between different sectors of various nations.
This made comparative law indispensable. Taking note of the necessity of comparative law, the
First International Congress of Comparative Law was held in Paris in 1990, which acknowledged
and analyzed the comparative method of the law.

With specific reference to India, comparative law was used as early as in the pre-independence
era when the Law Commission of India deliberated on different models and policies relating to
criminal liability in common law and civil law, in addition to the existing indigenous law of
different parts of India, during the formulation of the Indian Penal Code[4].

 COMPARATIVE PUBLIC LAW- MEANING AND DEVELOPMENT

Taking into consideration the meaning and implications of public law and comparative law,
comparative public law can be defined as a comparative study or analysis of the laws of different
countries which govern the state and its relationship with its subjects. Therefore, it encompasses
the comparative study of constitutional as well as administrative law of different jurisdictions.

Comparative public law has played a key role in the drafting of constitutions of new democracies
like India. According to Upendra Baxi,

“constitution makers everywhere remain concerned with the best constitutional design, however,
that ‘best’ consists in ‘shopping’ around available models and adapting to their needs and
aspirations. The eventual mix, is constrained by history interlaced with future-looking
aspirations for social transformation.”[5]
The role of comparative public law is very evident in the Indian Constitution. During the drafting
of the Indian Constitution, the discussion on preamble[6], fundamental rights[7], directive
principles of state policy[8], parliamentary form of government[9], federalism[10], judicial
review,[11] amendments,[12] equality before law[13], equal protection of law[14] etc. were
primarily adopted after a comparative analysis of the constitutional laws in the United States of
America, United Kingdom, Canada, Ireland, Australia and others.

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The role of comparative public law does not stop after the Constitution has been drafted.
Subsequent constitutional developments take place through judicial decisions and academic
research based on the use of foreign precedents and comparative constitutional literature. In a
number of landmark judgments of the Supreme Court of India, relating to equality, expressional
freedom, business, property right, right to life and personal liberty, death penalty, right to
privacy, religious freedom and minority rights, one can find reference to foreign judgments in the
course of interpretation of constitution and laws.[15]
 THE SIGNIFICANCE OF COMPARATIVE PUBLIC LAW
o Globalisation and advancement of technology

The study of comparative public law, though in its nascent stage, has gained popularity due to
industrialisation, globalisation and liberalisation. Countries do not exist in isolation and the
world has now become one global market due to the fast-emerging technologies and dissolving
national boundaries. Individuals have started to perceive every aspect of their lives in the global
context. For example, the issue of personal liberty and privacy in the era of technological
developments has created issues that required the extension and acknowledgement of traditional
constitutional principles to cyberspace.

In light of this era, the social, economic and legal problems faced by many countries are either of
a similar kind or transnational. Therefore, the role of comparative public law comes into the
picture by firstly, analysing the stand taken by other jurisdictions with regard to the issue which
one state is facing now, and secondly, by addressing the transnational issues with international
cooperation, for which a clear understanding of laws of other nations is required.

 Interpretation of laws

Comparative public law plays an important role by helping the judiciary in discharging their
function in primarily two ways-

1. When there is a need to interpret certain aspects of law which have not been discussed in great
detail by the legislature

If the judiciary is faced with a situation wherein there is a need to interpret the law, but the
intention of the legislature is not very clear, the judiciary can rely on the comparative
interpretation of laws in different jurisdictions to get an understanding as to what could be
beneficial to the society at hand. In doing so, it can either apply the same interpretation or
modify it, by tailoring it to the present as well as the future needs of the society.

1. When there is a lacuna in the existing law of the land

There is a general presumption that all the countries of the world face more or less the same or
similar kind of issues relating to public law and therefore, a comparative study of different legal
systems with respect to their approach of tackling the issue prove helpful in addressing the issues
faced in different jurisdictions.

Therefore, if a situation arises wherein the law of the land has not addressed a particular legal
issue, the judiciary can take recourse to comparative public law analysis for understanding which
approach is best suited for the country. This could be done by researching how a particular
country has solved the public law issue at hand, and whether the same or similar approach can be
adopted, or there is a need to modify such an approach.

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There have been a number of instances where the Indian judiciary has referred to a comparative
analysis of the stand of different jurisdictions with respect to a particular legal issue, to arrive at a
conclusion. For example, the majority opinion in Justice K S Puttaswamy v. Union of
India[16] highlighted the fact that the concept of proportionality,[17] which is used to balance
 rights and competing interests, has been adopted by European law. Also, an entire section of the
majority opinion[18] is dedicated to comparative law analysis of the recognition of right to
privacy as a fundamental right under different jurisdictions. A similar approach was adopted by
the Apex Court in Joseph Shine v. Union of India,[19] Navtej Singh Johar v. Union of
India[20] and Common Cause v. Union of India[21], where the Supreme Court analysed and
relied on the stand of foreign jurisdictions with respect to adultery[22], consensual sexual acts
between homosexuals[23] and euthanasia and living will[24], respectively.

 Understanding the differences of different legal systems of the world

The historical development of any society plays a significant role in the development of public
law of that jurisdiction, with respect to the issues they faced and what was their approach while
dealing with it. Understanding the historical development of the system of governance prevalent
in the major legal systems helps in understanding how universally the premises of justice and
other values are shared[25] and what moral assumptions, cultural traditions, historical
experiences and economic considerations are reflected in a given society’s attitude towards the
problem of social control.

 Adopting the best practices

Comparative public law provides a clarification of the perspectives, conditions, and alternatives
for all communities for securing and enhancing democratic values.[26] This comparison helps in
recognising and adopting the best practices from the laws around the world into our legal
framework. As Geoffrey Wilson pointed out, “comparative studies have been largely justified in
terms of the benefit they bring to the national legal system.”[27]
The recognised best practices, with respect to a particular public law issue, helps in formulating
appropriate laws and policies to deal with the present issues and the issues which might arise in
future. This further aids in making the legal system more adaptive to the changing needs of
society.

 International world order and harmonization

Comparative public law enables understanding between different nations with a view to reducing
world tension. It helps in resolving the differences in the public laws of different countries that
are at a similar stages of development. It further helps in reducing the number of conflicts
prevalent among the nations, which can be attributed to political, moral, social and historical
differences. It further plays a role in the harmonization of law and bringing uniformity and
reducing the differences.

 THE PROCESS OF COMPARATIVE PUBLIC LAW

There are broadly two types of constitutional democracies vis-à-vis comparative law. Firstly,
constitutional nationalism wherein it is believed that each nation has developed under different
circumstances, whether social, political, economic, cultural or historical and thus, laws that
resolve issues of one nation, cannot be applied to solve the problems of a different nation.
Secondly, constitutional cosmopolitanism[28] wherein it is believed that different cultures of the
world are all sub-parts of one big civilisation and thus, even though one legal system is different
from another to some extent, the basic set of principles and rules governing human behaviour
and the institutions of the state remain the same.
 The idea of constitutional cosmopolitanism has led to the development and application of
comparative public law in modern times.

Comparative public law can be carried out in the following ways-

1. The functional method, which is based on the premise that since law is based on society and
every society faces similar problems, therefore, the functions of the regulators also remain
similar and therefore can be compared.
2. Structural method, which is based on the comparison of structure of law. It focuses on the
internal structure of the legal system and its core elements.

 An analytical method, which focuses on analyzing the meaning of different aspects of the law. It
analyzes how the same concept can be understood in numerous ways.

Further, the process of comparative public law involves the following steps[29]–

1. Boiling down the issue which needs to be analysed

2. Understanding the objective of comparison- similarity or differences

 Choosing the jurisdictions which are to be compared

1. Selection of comparative elements

2. Selecting whether there is a need for micro comparison (smaller units) or macro comparison
(legal systems)
3. Understanding the paradigms of comparison like human rights, historical, social, economic,
political, cultural and other relevant factors

 Finally, choose the manner/way in which the comparison is to be carried out functional,
structural or analytical.

This concludes the process of comparative public law.

 CHALLENGES TO COMPARATIVE PUBLIC LAW

The search for optimal constitutional design by the nascent democracies is a general practice.
Comparative public law assists in this search. However, there are a number of challenges which
are faced while comparing the public law of different jurisdictions. Some of them have been
mentioned below[30]–

1. The lack of understanding or inadequate knowledge about the social, cultural, historical and
other factors that influence the legal system
2. Language in which the knowledge system of law was developed abroad poses a challenge in
adequately understanding how the legal issue was dealt with

 Culture specific experiences cannot be generalized as universally valid

1. Choice of improper paradigm or wrong premise for comparison

2. Mere engagement in comparative analysis sometimes fails to provide satisfactory solution to the
issue at hand
3. Difficulty may arise with regard to availability of data, primary and secondary resources.