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MATS LAW SCHOOL, MATSUNIVERSITY, RAIPUR,

CHHATTISGARH (2022-2023)

COMPARATIVE PUBLIC LAW

PROJECT ON

“CONCEPT AND USES OF PUBLIC LAW”

Submitted to- Mr. Prashant Kumar Sir

Submission by- TRUPTI DIPAN GALA

Mats ID- MU22LLM1Y028
Course- LL.M (1 year) Semester 1
Date of submission: 27.12.2022
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ACKNOWLEDGEMENT

In preparation of my assignment, I had to take the help and guidance of some respected
persons, who deserve my deepest gratitude. As the completion of this assignment gave me
much pleasure, I would like to show my gratitude to Professor Mr. Prashant Kumar Sir, on
Mats University for giving me required guidelines for assignment throughout numerous
consultations. I would also like to expand my gratitude to all those who have directly and
indirectly guided me in writing this assignment. In my grateful list, technology is the first
thing I’m thankful for. I respect and thank Mats University, Mats law school, Raipur for the
great learning opportunity which enhanced my knowledge in the subject. Also, I am grateful
that I could finish the project on time. Last but not the least, gratitude to my helpful
classmates for support and willingness to help.

TRUPTI DIPAN GALA

MATSID: MU22LLM1Y028
LL.M. (1 Year) SEMESTER -1
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DECLARATION

I certify that this assignment is my own work, based on my personal study and/or research
and that I have acknowledged all material and sources used in its preparation, whether they
be books, articles, reports, lecture notes, and any other kind of document, electronic or
personal communication. I also certify that this assignment/report has not previously been
submitted for assessment in any other unit, except where specific permission has been
granted from all unit coordinators involved, or at any other time in this unit, and that I have
not copied in part or whole or otherwise plagiarized the work of other students and/or
persons.

TRUPTI DIPAN GALA

MATS ID: MU22LLM1Y0028
LL.M. (1 Year) SEMESTER1
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CERTIFICATE

This is to certify that Trupti Dipan Gala, a student of 1 year LL.M of Mats University, Raipur
has successfully completed the research on the assignment on “Comparative Public Law : on
the topic : “Concept and use of Public Law” under the guidance of Professor Mr. Prashant
Kumar Sir during the year 2022-23. The original research work was carried out by her under
my supervision. It is further certified that this project is the individual work of the candidate.

Signature:
Date: 7th January, 2023
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TABLE OF CONTENT

PAGE
SR. NO PARTICULARS
NO.

1. Acknowledgement 2

2. Declaration 3

3. Certificate 4

4. List of Abbreviation 6

5. List of Theories and Laws 7

6. Introduction 8

7. Public Law 8

8. Defining comparative law 8

9. Historical Background 9

10. Uses of Comparative Law 15

11. Purposes 17

12. Challenges 19

13. Conclusion 19

14. Bibliography 20
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LIST OF ABBREVIATION

1) Constitution of India

2) IPC- Indian Penal Code.

3) CRPC- Criminal Procedure Code.

4) Ors- others.
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LIST OF THEORIES AND LAWS

 Dicey’s Theory
 German Civil Code and legal service
 British Legistation
 Constituion Act 1982
 Jurisprudence
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1, INTRODUCTION

Ever since UGC has introduced one year LL.M Program in the year 2013-14, three
compulsory subjects are mandated to be taught to the students in the first semester of their
Masters in Law. Comparative Public Law is one of those three subjects, perhaps the most
critical one which as a subject, for various reasons, draws not only a considerable amount of
attention of the experts across the globe but it has also invited animated debate as to whether
or not it can be called an independent discipline. Advocates of comparative studies, scholars,
researchers are often divided in their opinions on the issue at hand. Most of the law lexicons
are stoic and silent in their explanations and connotations. However, it can be construed that
finding a specific concise definition of comparative law is exceedingly complex and mind
boggling but it can be understood if one goes to comprehend its utility, classification,
historical back ground, scope, purposes and various challenges. This article attempts to
simplify it as much as in a manner in order to make the readers understand it in full measure
without much complexity.

2. PUBLIC LAW

\Before attempting to define CPL, let’s try and understand very briefly what this public is all
about. Constitutional law, administrative law, criminal law, taxation law, procedural law,
labour law, trade law etc. that cover administration and governance, constitution, taxation and
criminal acts fall in the category of public law. These laws control the actions between the
citizens of the state and the state itself. Public law invariably deals with the governments’
operation and structure.

3. DEFINING COMPARATIVE PUBLIC LAW

As far as defining comparative public law is concerned, there is hardly any consensus. Some
say comparative law is a systematic application of comparative technique, a discipline, a tool
or a method. It is rather a comparative approach to study laws and legal institutions of two or
more countries, their constitutional frame works, administrative mechanisms and policy
making formats & systems of governance. Therefore, Comparative Public Law (CPL) is
interchangeably called Comparative Systems of Governance. Over and above, it is a
technique of looking one’s own law through the mirror analogous laws of other countries. An
eminent comparative lawyer has said that the phrase comparative law is a strange one. He
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goes on to say that comparative law denotes a method of study and research and not a distinct
branch or department of the law. However, legal definitions of CPL are not only
unsatisfactory but they lead to more controversies not conducive to results. To understand its
meaning & definition more succinctly I quote the following: According to Holland,
“Comparative law collects, tabulates the legal institutions of various countries, and from the
results thus prepared, the abstract science of jurisprudence is enabled to set forth an orderly
view of the ideas and methods which have been variously realized in actual systems.”
Salmond defines “Comparative jurisprudence as the study of the resemblances and
differences between different legal systems.” Prof Gutteridge defines, "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” The Vocabularie
Juridique defines -Comparative law as a branch of Legal Science whose object is to bring
about systematically the establishment of closer relations between the legal Institutions of the
different countries.

4. THE HISTORICAL BACKGROUND

The ruler is expected to take care of his subjects, and safeguards the composite elements of
public order: religion, security, and recreation. The plan of the city is its constitution.
Physical structure and the structure of rules combine under a single master plan, appropriate
for the community living together in the public space carved out pursuant to the governing
plan. In fact, in Ancient Greece, when a new colony was established, the urban plan went
hand in hand with the constitution: both followed the master plan of the mother-city (the
metropolis).

4.1 The Concept of Ideal City State-Plato & Aristotle The physical and political plans of
the city were intended to correspond to some (divine) truth or ideal harmony. The
plan of the ideal city mirrors that of the ideal metropolis. Cities are not exactly alike,
but all conform to a recognizable type. Do not constitutions similarly attempt to
emulate the ideal constitution of the ideal metropolis of their time? Cannot
comparative constitutionalism be enlisted in the quest to live up to an elusive measure
or standard? The conception of an ideal government can be useful for purposes of
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comparison with actual governments. Plato's ideal, however, was so unachievable that
it did not invite comparison to contemporaneous actual Greek states. Aristotle, on the
other hand, was concerned with actual government, and thus meticulously compared
abstract forms of government with actual, Real-existierende states in order to find out
how best to approximate the relevant ideals. At its beginnings, the science of
government concentrated on thorough and exacting comparison: it is quite likely that
Aristotle undertook to compile a collection of the constitutions of 158 Greek city
states for such reason (albeit that only his analysis of the Athenian Constitution
survives). Significantly, it was on the basis of this comparative material that Aristotle
developed his theory of government in his Politics. Notwithstanding the collapse of
government and the vanishing of the corresponding political science in antiquity, and
notwithstanding the subsequent prevalence of religion and custom in matters of
government, the comparative tradition did reemerge with the advent of modern
political thought.

4.2 Post Revolution Period in France & the USA Notably, Machiavelli's precepts were
based on observations grounded in contemporary and historical practices of
government. Whereas normative considerations and even extended use of biblical
interpretation were common in the formation of modern constitutionalism, the
political science of the modern era would be unthinkable without continued reference
to a rich anecdotal tradition of comparative work on government practices.
Montesquieu's empiricism in the Spirit of the Laws provides perhaps the most
notorious example of historical comparison, continuing the tradition of using
comparative materials to generate normative conclusions, in this case culminating in
the establishment of the foundations of modern constitutionalism. Comparative
constitutional inquiry became particularly relevant in the aftermath of the revolutions
in the United States and France. The Founding Fathers and the French revolutionaries
had to invent a new organization of the state and they could rely only to a limited
extent on pre-existing structures. The empirical evidence offered by comparison was
both a source of inspiration and of legitimation. In the Federalist Papers, references to
foreign experiences are made for justificatory purposes. In France, the translation of a
collection of US state constitutions became one of the most important intellectual
sources of reformist and revolutionary political thought, and comparisons with the US
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and English arrangements were common in the debates of the National Constituent
Assembly.

4.3 Liberal Constitutional Theory In the liberal constitution-making process of the early
nineteenth century, comparison with the various French constitutions was standard
procedure and Latin American constitution-making often relied on a consideration
and comparative analysis of the US constitution. In liberal constitutional theory
comparison, in some cases supporting developmental theories continued to be
relevant, as was the case with J.S. Mill's Representative Government in matters of
election law. Constant, Tocqueville, and Eötvös used constitutional comparison
extensively, and Bryce developed a more systematic approach marked by his
distinction between rigid and flexible constitutions. However, by and large,
constitutional law became at this stage an independent though somewhat narrow
subject, and increasingly its consolidation meant the abandonment of comparison.
Characteristically, in Germany before the consolidation of the Empire and of its
public law system, comparison was an important source of scholarly and reformist
inspiration. In fact, the nineteenth-century German attempt to tame the administrative
(police) state necessitated reliance on comparative public law, and the theoretical and
practical elaboration of the constitutional theory of the Rechtsstaat was influenced by
comparison and had a major impact in Europe through the translations of the concept.
Hence, the interest in comparing administrative justice as a freedom enhancing
control over the administration. Even Dicey's Introduction to the Law of the
Constitution ventured into comparative studies. Interestingly, Dicey's
misunderstanding of the French system can be compared to the inspiring errors of
Montesquieu regarding checks and balances in Britain, a century earlier. With the
establishment of positive constitutional law in the nineteenth century, international
comparison lost much of its appeal and legal science and public law practices became
increasingly self-referential, as if the existence of a national constitution would have
made foreign law irrelevant.

4.4 Comparative Interest & Curiosity to Change Comparison of governments became a

focus that was intended to satisfy intelligent curiosity, and partly to inspire change.
Georg Jellinek, a leading exponent of legal positivism, developed a theory of the
universalism of human rights relying on a comparative methodology. For his part,
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Adhémar Esmein, who also considered the state and its sovereignty a legal
phenomenon, stressed the relevance of using some comparison in discussing French
constitutional law. Even Duguit, whose scholarship was to a considerable extent
directed against Esmein, continued to include comparative treatises in his work.
Édouard Lambert, instituted a civil law-based comparative law in France and the first
French comparative law institute in 1921. Moreover, Lambert's description of the US
jurisprudence pertaining to labor may be considered a precursor of the treatment of
foreign constitutional law as an element comparative law. In short, whereas legal
positivism may not have been particularly favorable to the comparative approach, the
latter served the practical needs of public law reform and constitution-making. In spite
of the existence of a comparative interest in academic constitutional law (exemplified
by the first international conference in 1900 and by the establishment of the ‘Société
de legislation comparée’ in Paris in 1869), modern comparative law (as a semi-
autonomous discipline) originated in the efforts of private law experts. This might be
related to international commercial interests and also to the desire to export national
civil law codes. Such ‘imperialism’ was certainly present in the promotion of the
German Civil Code. The theories of comparative law reflected considerations and
concepts of private law, and constitutional law was often neglected in the comparative
study of great legal systems. The low profile of constitutional law in comparative law
may be due to the difficulties in finding universal elements in constitutional law.
Nevertheless, already in the period between the two world wars, comparative
constitutional law became established as a separate scholarly discipline.

4.5 Comparative Public Law & Foreign Systems Comparative constitutional law
scholarship did not emerge as an academic discipline until after the Second World
War. In post-Second World War Europe comparative constitutional law was
influenced by the East/West divide. Foreign constitutional systems were often studied
as part of Soviet legal studies, and, respectively studies on Western bourgeois state
law. Comparative law was understood as the study of foreign systems, with a heavy
ideological accent. If constitutional law begins to ask what people actually do under a
particular constitution, and not merely what battle of words they engage in for the
settlement of conflicts among them, the constitutional lawyer becomes The shift
towards a value-based approach is certainly rooted in the coming to power of
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totalitarian regimes. It resulted from the discontent with positivism in political science
and law as the latter had proved intellectually impotent against totalitarianism. While
not explicit, this normative commitment to constitutionalism remains influential in
comparative constitutional law, even if this results in the neglect of the study of non-
liberal regimes. The interest in comparison motivated by the shift to a value-based
approach continued to sustain a comparative interest after the Second World War, as
part of Cold War thinking, as liberal democracies defended their system in opposition
to communist totalitarianism. The post-war period was characterized by an
international human rights revolution, with various waves of state formation and
democratization, coupled with increasing judicialization of constitutional law. Such
comparative interest drew further inspiration from the enhanced protection of
fundamental rights that issued from the US Supreme Court starting at the beginning of
the 1940s.The English reader will be interested to find that some of the problems
which are now being considered in the United States are also of immediate
importance in Great Britain. The first is concerned with the maintenance of our civil
liberties at a time of ‘cold war’.

4.6 Comparative Studies as Academic Discipline It is particularly noteworthy that in the

transition from comparative government studies to comparative constitutional law as
an academic discipline within the ambit of legal scholarship the interest in the subject
matter proved to be primarily ideological. Indeed, a principal intent was to boost
liberal constitutionalism against totalitarianism, and the elaboration of this new field
was more the result of dissatisfaction with the prevailing positivistic method in law
and government scholarship than an attempt to carve out a discipline or sub-discipline
within jurisprudence. Comparison was intended to highlight theoretical trends and the
object of the comparison became primarily government practice as the source and
consequence of public law. The above phenomena occurred in an international
context where the level of state interaction and interdependence contributed to the
spreading of more intense and new forms of constitutionalism. These trends created
new needs both within law and in government, and these related in particular to
constitution-writing as a matter of borrowing and international cooperation. However,
according to Mark Tushnet, it was only the transition to democracy beginning in 1989
that has created the field of comparative constitutional law, resulting from the
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practical needs of constitution-drafting and institution-building, which produced a

critical mass of knowledge and experts. Furthermore, the preservation of comparative
constitutional law as a separate discipline with full-fledged practical relevance
requires constitutional adjudication oriented toward comparison. In this respect, the
role of international courts, and suggested or mandated comparison as is the case in
the Constitution of South Africa which recognizes foreign constitutional law as a
legitimate source of constitutional decision-making, play a crucial role.

4.7. The Use of Comparative Method Comparative constitutional law was often part of the
very movement towards the juridicization of constitutional law, as in the case of
France where the importance of constitutional adjudication was recognized through
comparative studies, in particular thanks to the activities of Louis Favoreu and his
collaborators. The increased interest in case law resulted in a new emphasis on rights,
while earlier scholarship was more concerned with structural issues of governance.
The use of comparative method was well established in the German legal sphere but it
has remained somewhat secondary in the prevailing theoretical study of the state
which was not constitution-centered. Systemic specialized textbooks are still rare and
relatively recent. The recognition of the practical importance of the comparative
method is, once again, intimately related to the increased importance of comparison in
constitutional adjudication. For German legal science this means a partial paradigm
change in legal methodology: comparison is understood as a new (fifth) method of
legal interpretation. While comparison became to varying degrees integrated into
domestic constitutional law (in many countries, for the simple reason that their
constitutional system became part of a supranational system with its own
supranational constitutional law) and therefore it is inherently related to national
constitutional law studies, it became an academic discipline in its own right, reflecting
not only upon commonalities and differences in national systems, but it is also a
reflection upon the interaction of national and supranational constitutional institutions.
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5. USES OF COMPARATIVE PUBLIC LAW

One can discern four principal uses of comparative constitutional law. Two of these, uses of
foreign constitutional materials in constitution-making—broadly understood as encompassing
constitutional revision or amendment—and in constitutional interpretation are in the hands of
actors or participants in the constitutional arena. The other two uses, providing descriptive
accountings and elaborating normative assessments of participant dealings with comparative
constitutional materials, in contrast, are primarily reserved for those who assume the role of
observers, namely scholars in law and in other relevant disciplines. Examples abound of
actual uses of constitutional materials originating in a jurisdiction other than that in which the
actual users of such materials carry out official functions in relation to their own constitution.
Thus, for example, various constitutions, including the Canadian Charter of Rights and
Freedoms (Constitution Act of 1982, Pt I), have influenced constitution-making in South
Africa, New Zealand, and Hong Kong and the Basic Law in Israel. Similarly, such uses have
also occurred in constitutional interpretation, and are even sometimes explicitly endorsed by
constitutions themselves, as in the South African Constitution, which, as noted above,
specifically empowers courts to consider foreign law when interpreting the Bill of Rights.
These uses, moreover, have spread to transnational settings, where their constitution-making
and their constitutional interpretation dimensions have, on occasion, been combined. A prime
instance of this occurred when the European Court of Justice (ECJ), the EU's highest judicial
body, began filling constitutional gaps at a time when the governing treaties of the
transnational unit that is now the EU lacked any fundamental rights-related provisions. In its
landmark 1974 Nold decision, the ECJ stated that in order to safeguard fundamental rights in
the context of EU-imposed regulation, it had to start from the common constitutional
traditions of the member states. Accordingly, the ECJ ‘cannot … allow measures which are
incompatible with fundamental rights recognized and guaranteed by the constitutions of those
States’. What Nold launches is both a piecemeal ECJ-driven constitution-making project
relating to fundamental rights and an interpretive agenda depending on constitutional sources
extrinsic to the EU (or its treaty-based predecessors). In order for constitution-makers and
interpreters to make cogent and optimal use of foreign constitutional materials that they either
must, or wish to, consider, it is necessary for the latter to gain familiarity with them and to
become able to gauge what usefulness any particular foreign referent may have in a given
concrete decision-making instance. This is likely to require both an understanding of how a
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foreign constitutional norm figures in its own institutional setting and how it compares to
seemingly similar norms in one's own and other pertinent constitutional systems.
Constitution-makers and judges do make use of institutional models, structures, processes,
arguments, and doctrines coming from beyond their own jurisdiction, and they need sufficient
familiarity with those materials to justify such use to themselves and to the audiences to
which they must remain responsive. Moreover, judges can sharpen their relative knowledge
and appreciation of foreign materials through dialogues with constitutional judges from
various countries, and through reference to relevant examination, analysis, and comparative
assessment of the said materials in the works of comparative constitutional law scholars. The
latter scholars approach the relevant material as observers, and they tackle it from either a
descriptive or a prescriptive perspective. From a descriptive standpoint, the scholar examines
systematically the comparative constitutional work that participants undertake, performing a
number of tasks ranging from classification to critical assessment. For example, a scholar
may distinguish between areas or subjects in relation to which much comparison occurs and
those that give rise to minimal comparison. Or a scholar may be critical of existing
comparisons in a particular area, let us say free speech, upon concluding that constitutional
judges base comparisons on superficial similarities while ignoring less apparent but much
more important differences. Normative or prescriptive scholarly work, on the other hand,
concentrates on what the scholar deems desirable or feasible, depending on the latter's
empirical, ideological, or discipline-based position. One may be convinced, for instance, that
constitutions are deeply anchored in a particular tradition and that use of foreign material is
therefore bound to betray the imperative to maintain the uniqueness of every constitutional
system. Or, one may be persuaded that fundamental rights are ultimately universal and that
countries with less developed constitutional jurisprudence should always seek to benefit from
the experiences of their counterparts with far more developed such jurisprudence.
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6. PURPOSES

The key concern in comparative law as it emerged in the civil law tradition in the late
nineteenth and early twentieth century was to find the fonds commun législatif. This was the
position of Capitant and Lambert in France, and it fostered the training of foreign lawyers in
the national tradition in the name of comparative law. There is an analogous trend in
comparative constitutional law emerging from the works of those who posit its principal goal
as distilling what is universal or common in all constitutional systems and traditions.
Accordingly, comparative constitutional analysis is sometimes animated by a search for the
universal on the basis of what can be empirically observed or of conformity to the ideal
(liberal, constitutionalist) arrangement through adaptation of manifold particular settings in
varying cultural and historical circumstances. This search for the universal goes back to the
early comparative law tradition exemplified by Anselm Feuerbach, the early nineteenth
century German scholar who is credited with founding the discipline of comparative criminal
law. Also important was the influence of comparative linguistics, pursued by the liberal
constitutionalist Wilhelm von Humboldt, which was aimed at generating a universal sense of
language based on comparative language studies. This focus on universals is especially
salient in comparative constitutional law endeavors to compare national solutions in terms of
constitutionalism's search for a political ideal of ordered liberty. Moreover, the strong
emphasis on the universality of human rights and the use of comparison in human rights
adjudication which are intended to find a measure or standard of universally applicable norms
point in the same direction. Some argue, for example, that there is a generally accepted
virtually universal method of justification when it comes to circumscribing the scope of
fundamental rights: that provided by the standard of proportionality, though judges and
scholars differ in their conceptions of this ubiquitous standard. In this context, the study of
the constitution of illiberal democracies centers on the reasons for departure from the ideal
model, and focuses on the extent to which non-liberal constitutional systems can sustain a
well-functioning legal order. Significantly, the influence of the constitution on the legal
system in liberal democracies goes well beyond formal institutional settings and definition of
legal sources: constitutional values become embedded in the various branches of law and
even in private relations. There is a lack of consensus concerning the proper goals of
comparative analysis that is due to broader ideological disagreements about the nature and
function of law in general, and of constitutional law in particular. Specifically, some argue
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that basic principles of constitutional law are essentially the same throughout the world.
Accordingly, the principal goals of comparative analysis are to identify and highlight the
common or universal principles and to determine how particular constitutional jurisprudences
do, or may be made to, conform to those principles. At the other end of the spectrum, are
those who maintain that all legal problems are so tied to a society's particular history and
culture that what is relevant in one constitutional context cannot be relevant, or at least
similarly relevant, in another. This position is encapsulated in Montesquieu's observation that
‘the political and civil laws of each nation should be so appropriate to the people for whom
they are made that it is very unlikely that the laws of one nation can suit another’. If that were
indeed the case, then the only legitimate task for comparative analysis would be to explain
how each constitutional system conforms to the singular needs, aspirations, and mores of the
particular polity for which it has been designed. Consequently, besides fostering a systematic
understanding of how law varies according to the particulars of its socio-political
environment, the principal goal of comparison—at least as far as participants are
concerned—would be a negative one. Because no two polities are likely to share essentially
similar circumstances, there ought to be a strong presumption against use or adaptation of
constitutional norms originated beyond one's borders. Between the two positions described
above, there are various other ones. Some believe that the problems confronted by different
societies are essentially the same, but that the solutions are likely to be different, owing to
varying circumstances that distinguish one society from the next. Hence, the principal benefit
of comparative work would stem from its ability to highlight specificities that tend to be
taken for granted, and to enhance the knowledge and understanding of one's own system. For
yet others, the function of comparative analysis is the development of an even more critical,
reflexive analytical capacity. Critical theorists have argued that comparative constitutional
law has a colonizing and hegemonic edge, as it tends to project the gloss of a dominant
constitutional culture, such as that of the United States or Germany, onto constitutional
systems operating in former colonies and other developing polities. This raises the question
of whether the ideological biases attributed by certain critical scholars to comparative
constitutional law stand out on their own or whether they are in the end no different than
similar biases claimed to be operating in purely domestic fields of public and private law.
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7. CHALLENGES

Some claim that comparative analysis in general, and comparative constitutional analysis
law. Richard Posner asserts that for linguistic reasons alone many foreign legal systems are
difficult to access. Added to that, in Posner's view, domestic judges and scholars cannot
easily attain a sufficient familiarity with foreign legal systems and with the social, cultural,
and institutional systems in which the latter are embedded to warrant any confidence in the
accuracy or utility of actual comparisons. Furthermore, for those with universalistic
tendencies, comparative constitutional law should aim at harmonization and convergence,
and search for application of common or functionally equivalent concepts and institutions.
Consistent with this, the hope is to achieve common and shared solutions, contributing
perhaps to some kind of democratic world order of Kantian world citizens. Writing from a
comparative law perspective, Pierre Legrand has cast a particularly stringent criticism on
such ambitions: rules and concepts alone actually tell one very little about a given legal
system. … They may provide one with much information about what is apparently
happening, but they indicate nothing about the deep structures of legal systems. Specifically,
rules and concepts do little to disclose that legal systems are but the surface manifestation of
legal cultures and, indeed, of culture tout court. In other words, they limit the observer to a
‘thin description’ and foreclose the possibility of the ‘thick description’ that the analyst ought
to regard as desirable. Accordingly, all comparison involves translation, and the current trend
to internationalization of constitutional law and to stressing analogies and convergences
vastly increases the likelihood of ‘getting lost in translation’. Another kind of challenge stems
from instances in which domestic courts place an implausible interpretive gloss on foreign
authorities, apparently for strategic purposes. This may occur in the course of constitutional
adjudication in relatively new constitutional democracies, when courts seek to shield
controversial and contestable decisions through reference to the constitutional jurisprudence
of an established and respected constitutional democracy. For example, several decades ago,
the Israeli Supreme Court made reference to American free speech doctrine to justify
decisions inconsistent with those of US courts in similar cases. As presumably strategic
citation of precedents and authorities also occurs in purely domestic settings—both by
advocates and by judges endeavoring to emphasize the soundness of their decisions—a key
question is whether the challenge posed by strategic uses of legal authorities is markedly
greater in the comparative context as opposed to that of its purely domestic counterpart. One
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possible answer is suggested by reference to the claim that citation of foreign authorities
should be avoided because it is inevitably selective. That is the reason Justice Scalia
reproached the US Supreme Court's majority opinion reference to European jurisprudence in
Lawrence v Texas, the case in which the Court held as unconstitutional the criminalization of
homosexual sex among consenting adults. Justice Scalia complained that citation of European
jurisprudence was selective and thus misleading as in other parts of the world, such as
jurisdictions in Asia and South America, the criminalization at issue was deemed
constitutional. But by citing these latter jurisdictions, Scalia appears to undermine his
assertion that selective citation poses a threat. Actually, familiarity with foreign material
allows both promotion and neutralization of selective citations. Arguably, the same can be
said for strategic citation.

8. CONCLUSION

Inspite of diverse views of the experts and comparative advocates, though some of them are
bit discouraging, Comparative law has not only arrived, but has undoubtedly come to stay.
The atmosphere of suspicion and indifference in which t it was formerly shrouded has been
dissipated to a considerable extent though perhaps, not entirely. In any event, comparative
law has established its claim to be recognised as a branch of legal technique and as an
integral factor and a living influence in the study and development of law, and this is no mean
achievement for a branch of learning which has yet to celebrate the century of its birth. A
comparative lawyer is, however, in no way called upon to apologise for his subject or to
defend it. The tragic events of the last half-century have emphasised the need for more
effective collaboration in the international sphere and for a pooling of the resources of the
world for the benefit of mankind in general, not merely as regards material things, but also in
the domain of science and learning. As Lord Macmillan has said : 'Nations have to live
together, and the best method of overcoming distrust and want of confidence and of breaking
down walls and barriers lies in the promotion of means of sharing our intellectual interests
with other nations.” If this were done many political and economic differences would tend to
disappear in an atmosphere of friendliness and trust. References: Gutteridge, Comparative
Law-An Introduction to the Comparative Method of Legal Study & Research, Universal
publication M.P Singh, Comparative Constitutional Law, Second edition, Eastern Book
Company Mauro Bussani & Ugo Mattei, The Cambridge Companion to Comparative Law,
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Cambridge Michel Rosenfeld & Andras Sajo, The Oxford Hand Book of Comparative
Constitutional Law, Oxford Publication

Bibliography
o ipleaders.com
o indiankanoon.org
o legalservicesindia.com
o Dr. S. A. Karandikar
o Dr. V. Bindu