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Characterization on the basis of comparative law


Conflict of Laws
Sarita Gaur
Roll No.09BAL014
Semester IX
B.A.LL.B. (Hons.)


Ms. Bhumika Nanda
Asst. Prof., ILNU

Submitted to

Chapter 1
1.1 Introduction:Characterization or classification of a given factual situation is one of the
necessary steps in the decision of a case having some foreign elements. Due to diversity
in the laws of the various countries of the world, at times characterization appears to be
an unsolvable problem.

For the same four theories of characterization have been

propounded viz by lex fori, under the lex causae, in two stages of primary
characterization and secondary characterization and the last based on comparative law
and analytical jurisprudence.
Comparative law is a method of study of various legal phenomena, by the
application of the comparative method, it has become possible to reveal the general and
the special in world legal systems of today.
The theory of comparative law and analytical jurisprudence was espoused
by the author of encyclopedia of comparative conflict of laws, Earnst Rabel and views
similar to his were advanced by in England by W.E. Beckett who said that conflict rules
should use conceptions of an absolute general character1.
The theory has been criticized by many, saying that the theory is vague and
impracticable as there are very few principles of universal application and very little
measure of agreement as what they are. The study of comparative law is applicable of
revealing differences between domestic laws, but of hardly of resolving them. 2
1 Conflict of Law by J.G Colllier, Cambridge University Press.
2 Diwan Paras ,Private International Law,4th ed.

1.2Research problem:-Comparative law has been criticized for excessive doctrinarism

and that it is impracticable. This paper makes a study on the use and various aspect of
theory of comparative law for decision of the cases having foreign elements.
1.3Hypothesis:The hypothesis developed on the basis of study in this research case is as follows:
There is no generally agreed or systematically elaborated comparative law
The discipline of comparative law is still not fully developed and is still in

1.4 Research Methodology:- The research methodology herein is used is the doctrinal
and analytical one. Thus, the research being doctrinal one, the material has been
collected from the secondary sources, i.e. books, various websites, and case laws. Apart
from secondary sources primary sources by case study has also been done.

1.5 Objective:The fundamental objectives of the present research project are: To analyze the

theory of comparative law and analytical jurisprudence in

characterization of law.
To study the merits and drawbacks of theory of comparative law.

1.6 Scope of research project:- Use of contemporary law is considered to be one of

the difficult id contested from all sides. The issues of its scope, purpose and utility , its
merits and demerits have been discussed in the preset project.
1.7 SCHEME OF THE STUDY:Chapter 1-Introduction
Chapter 2- Meaning and Concept of comparative law.
Chapter 3- Scope, purpose and utility of comparative law.
Chapter 4- Merits and demerits
1.8 Literature review:The danger with the fashion ability of combining the comparative method and law
reform is that the combination may become distorted and is liable to be misused. There
are two particular dangers which can arise from the fashion ability of the combination.
Firstly, there is the danger that a foreign solution will be adopted merely because it is
foreign. Secondly, foreign solutions may be consulted at length because it is fashionable
and because public opinion demands it, but no practical use may be made of them at the
end of the day. In situations where this happens, it would be better for the reformer to
have been honest and not have referred to the foreign research at all, rather than wasting
so much precious time, energy and money on it. Marsh is particularly critical of this kind
of tokenism due to the fashion ability of the combination. He says that a gap often exists
"between very extensive comparative research in connection with a legislative project
and a practical result on the proposals made"3