PROJECT WORK

SESSION: 2022-23

SUBJECT: COMPARATIVE PUBLIC LAW

TOPIC: IMPORTANCE OF COMPARATIVE

LAW

SUBJECT CODE: ML102-IP

SUBMITTED BY:-
SARTHAK SOLANKI
LLM (IPR) 1 YEAR
ENROLL NUMBER-20220231
 ACKNOWLEDGEMENT
The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely privileged to have got this all along the completion of my
project.

Working on this topic was a very knowledgeable experience and we owe our deep thanks to sir
for allowing us to work on this interesting topic.

At the end I would like to express my deep and sincere gratitude to the above mentioned whose
guidance, encouragement and constructive criticism have contributed immensely to the evolution
of our ideas

1 INTRODUCTION
Laws are evolved and developed in many ways. Comparing the laws of different
nations or even cultures provides for a unique way to develop laws in a better
manner. Comparative law is one such method which describes the comparisons
between different legal systems. There are two types of comparisons- micro-
comparison and macro-comparison. Micro-comparison refers to a comparison
between specific institutions or dealing with specific problems while macro-
institutions deal with the entire legal system. Thus, there are different manners
in which comparative law can be dealt with. 

Comparative law has managed to create its own important space within the last
two decades. There are jurisdictional approaches which recognize the
comparative law method. In the case of B.K. Seshu v. The Income Tax Officer,
the question for the determination of foreign tour expenditure as an admissible
deduction or not was raised. The court had analyzed various aspects of law
including comparative law. Certain aspects from the book “An Introduction to
the Study of Comparative Law” were considered by the court while giving the
judgment. Comparative law plays a significant role for not only international
relations but to understand a deeper meaning of legal systems as well.  

2 COMPARATIVE LAW 
Comparative law is a method for the study of laws of different countries. It
includes various processes such as analyzing the laws and comparing them on a
different basis. It emphasizes on the legal mechanisms being adopted by
countries and compares them. Comparative law is not a legal text or body of
rules, it is more of a method. Thus, German and French lawyers use terms like
‘rechtsver-gleichung’ and ‘droit compare’ which means law compare and thus
seems to be more appropriate for the subject. It is not a separate branch of law
but just a method to analyze different versions of the law. Comparative law is a
way to build a basic foundation through which laws all over the world operate.
The interconnectivity among the various sectors of different countries has
created a situation where consensus between the countries in various aspects
becomes important. 

There are trade and economic related issues as well as scientific in terms of
space exploration where international consensus becomes very important. And
for such agreements, the knowledge about the rules and regulations of different
countries plays a crucial role. It is also vital for the growth of the e-commerce
industry and modern communication technologies where jurisdictional issues
remain prevalent and thus the interaction of legal mechanisms is bound to
happen. The comparative method is useful for understanding the system of
one’s own country and another country. It provides an insight into various
political, economic, cultural, social and historical aspects which paves a simpler
way to address trade relations or diplomatic relations with the other nations. It
also assesses the degree of integration of legal systems and a balance in the
global and country level.        
3 HISTORY
The origin of comparative law is debatable on many factors as in many legal
systems it existed way before it was being called as comparative law. For
instance in Russian legal history, the method dates back to the sixteenth
century. Thus, the method existed for a  long term, however, the first mention
of comparative law is dated back to seventeenth-century where an English
author Bacon mentioned the term. Thus, the first adoption of modern
comparative law seems to have been done by Rome and England. In 1829, the
term was used by Mittermaier and Zochariae in their first legal review which
was devoted to studying of foreign law and thus paving its way into the legal
system of Germany. At the foundation event of the College De France in 1832,
the concept was introduced in France as well. 

Presently, Montesquieu is considered as the ‘Father of comparative law’ because

of the comparative approach he used in his book De l’esprit des lois. He
approached with the method of comparing penal laws in France and England by
analyzing the punishments given in both the countries. In the 20th century, the
concept got popularized and was used widely due to the expanding trade and
commerce relations between the countries. The explosion in inter-trade
relations between the countries makes the study of this method very important
to understand the laws and legal regulation of other nations.

 The concept of globalization further boomed the trade relations and the
comparative method was used widely. The first meeting on an international
level happened in 1990 in Paris, it was referred to as the first International
Congress of Comparative Law where the comparative method was analyzed and
acknowledged. The adoption of laws of other countries was done through
channeling the principles laid down, the customs, manners and political laws of
countries. It became crucial to examine the basic foundation that governs laws.
This gave rise to the comparison of different kinds. There were religious laws
such as Hindu law and Islamic law and there were regional laws such as in the
USA and Australia. 

Thus, many aspects were designed to be analyzed upon. The 21st century has
seen a more developed nature of comparative law. Cultures, public international
law, legal traditions and diplomacy are seen as new dimensions to study and
compare upon.           
4 CLASSIFICATION

4.1FUNCTIONAL METHOD
Popularized by Hein Kotz and Konrad Zweigert, the functional method deals with
comparing the functions of the law that are in place. This method states that
even if the structure of the law is different but they have the same functions
and so can be compared. This is based on the principle that the function of the
law in any society depends upon the societal problems and as the essence of
such problems is similar, the function also remains similar. This method is used
to solve issues and compare the nations on the basis of basic functions of law.
Issues like theft, rape, murder etc. are such practical problems which are basic
in every society and thus comparing such offences of different nations forms a
functional method. This method analyses the very core part of the offence i.e.
the issues which prevail in the society. 

4.2STRUCTURAL METHOD
This method is used to determine the similarity and difference between the
structure of law. It focuses on the internal structure of the legal system and its
core part. The structure of the legal system is analyzed and compared to
determine the difference between the implementation of the law. This method
helps in understanding the difference between how the legal systems have
understood the same problems in different manners.  

4.3ANALYTICAL METHOD
This is the most used method for comparative study. This method focuses on
analyzing the meaning of different aspects of the law. It analyzes how the same
concept can be understood in numerous ways. This includes the use of various
terms in legal references such as – right, liberty, cheating, defamation, etc.
There are concepts and terms which might be the same on definition level but
are interpreted and analyzed differently. The method used in this study helps in
comparing and understanding the use and interpretation terms which might be
similar in core nature but are used differently.  
4.4CULTURAL LEGAL COMPARISON 
This method uses the cultural aspect of the nations for comparison. Every law
and the legal system is based on cultural and traditional aspects especially civil
and common law. Thus, for comparing such laws, an understanding of the
culture of the host country is required. It might become challenging for a
foreign person to analyze and evaluate the cultural aspect and then linking it to
the legal system. Thus, this method acts as a barrier to many countries. The
study and understanding of personal laws and practices of marriages and
divorces thus can be challenging to compare. However, this study provides an
in-depth understanding of the origin and practices of law.    

5 SIGNIFICANCE
Comparative law has evolved over the years and has provided for a very
significant method to analyze the laws of other nations. It becomes important to
analyze and understand the different ways in which the legal mechanism can be
understood. The core part of every law around the world is based on the same
principles of justice and equity. The execution and understanding of the laws,
thus, becomes crucial. 

5.1EVALUATING A BETTER LAW

Comparative law helps in evaluating a better law. The comparison of different
countries helps in analyzing the pros and cons of legal mechanisms and
reaching a middle ground for the smooth functioning of better laws. There are
issues of liberty and discrimination which are not limited to one space or region.
And the application of such principles in other legal systems provides for a new
way of thinking and applying such laws in one’s own country. These principles
may not be binding in the court of law, but they are used to compare and
provide for a clear picture of the policies to be adopted.  

5.2GAIN KNOWLEDGE
It is significant in gaining knowledge for students and professionals. It expands
the horizon of legal mechanisms and provides for a chance to acknowledge the
different aspects of the same offence or principle. Comparative law has caught
the attention of both private and public international law and thus it is also
significant in analyzing the approach and method for the relationship between
individual and state and from state to state. 
5.3SUBSTANTIATING
It helps in substantiating the application of the law. This is applied in
commonwealth countries. As the laws are similar in these countries and the
basic principles are also similar, the study of their legal system helps in
substantiating the decisions made by other commonwealth countries. Even
India follows the common law principles and thus in certain matters the
understanding of UK judgments becomes crucial. 

5.4IMPROVEMENT IN LEGAL EDUCATION 

A comparative study helps in building analytical and a comprehensive approach
to apply legal mind. It helps in creating a distinction to the application of the
law based on region and culture. An emphasis on such comparison also helps in
chalking out the new policies with better reach and implementation. 

5.5UNDERSTANDING INTERNATIONAL LAW

The most significant part of comparative law is the understanding of
international law. It not only fosters good international relations but also helps
in awareness and strong international cooperation. There are many international
legal mechanisms and legal rules which binds different countries together for
the operation of a particular aspect of society. Public and private international
law, humanitarian law, the law of wars, international criminal law, international
humanitarian law and international refugee law are some of the basic parts of
international law. The Outer Space Treaty was signed by many countries to
regulate space exploration. The study of such international conventions and
treaties helps in understanding the relation of different countries to such legal
mechanisms. It also fosters better legal understanding between the countries.  

5.6TRADE LAWS 
It is crucial for understanding trade laws. The comparative method provides for
the deep analysis of application of the law. In the international trade system, it
is very important to understand the needs and purpose of a law of the other
country. Without having full knowledge of the legal aspects trade relations will
not be effective. 
5.7UNIFICATION OF LAWS
The main aspect of comparative law is the unification of laws on an international
level. The comparative method provides similarities and differences in the legal
system and thus helps in creating a uniform platform to come to a consensus on
certain issues. It is an important aspect of economic legal corporations. As the
trade policies are crucial, the international trading system is sought to be made
simpler with a comparative study. 

5.8ALTERNATIVE USE
It is different from the general legal theories and can be used in international
legal institutions like the United Nations to provide for analysis of different
countries concerning treaties. In case of conflict analysis, it can be used in
private international law and could contribute to legal theories as well.  

     

6 CONCLUSION
The comparative method has gained much attention in the last two decades.
The analysis of the legal systems and a better understanding of private and
public international law proves it to be a crucial method. A comparative study is
of such significant nature that it allows students and professionals to explore
the inner structure of any legal system. This further allows the minds to develop
new laws and policies in a better manner by analyzing the existing legal
structures of other nations and culture. On a global level, comparative law
designs and fosters different aspects of law and questions about the various
global and country-level perspectives.