Comparative Public Law

By: Dr. Deepak Sharma

AIALS, Amity University, Noida
Historical development of comparative law

• The term comparative law is recent; it was first used in the 19th
century when it became evident that comparing legal systems
required a systematic approach in order to advance legal progress and
foster greater knowledge of other cultures.
 Historical Roots of Comparative Law
• In the 6th century BCE according to legend, the Greek lawgiver Solon,
faced with the task of compiling the laws of Athens, gathered
together the laws of various city-states.
• Similarly, in the 5th century BCE, a Roman commission was reported
to have consulted the statutes of the Greek communities in Sicily
before giving Rome the famous Laws of the Twelve Tables.
• Aristotle, in the 4th century, is said to have collated the constitutions
of no fewer than 158 city-states in his effort to devise a model
constitution.
 Purposes of comparative law

• Ideas regarding the place of law in society and the nature of the law
itself—whether divine or human , whether dealing with substantive
or procedural rules—obviously become appreciably clearer when
comparative law is joined to historical research.
 SCOPE OF COMPARATIVE LAW

• Comparative Law'' is not a principle or body of rules of law, but an approach to or

method of technique of studying, law or any branch or topic of it, arising from the
diversity legal systems in the world and the different approaches adopted to
common problems, by examining side by side and in relation to another the
attitudes, institutions or rules on any matter of any more legal systems.
• Such study may be made for various purposes.
IMPORTANCE OF THE STUDY OF
COMPARATIVE
• Man learns by experience. Such experience need not be confined to
the bounds of one's own national territory, for the problems of the
human race are basically common.
• “it is right to observe that the fundamental right to the freedom of
speech and expression enshrined in Art l9 (l) (a) of our constitution
has been borrowed from the constitution of America and therefore it
will be proper and legitimate to refer to those cases and decisions of
Supreme Court of America to understand the true scope, nature and
extent of this right.
• After deciding so many important cases like Maneka Gandhi's cases
cooper's case: Sunil Batra's case by following the concept of due
process it has become a part and parcel of our constitution's case,
Cooper's case, Sunil Batra's case by following the concept of due
process it has become a part & parcel of our constitution.”
 DEFINITION OF COMPARATIVE LAW
• Comparative law is the study of differences and similarities between
the laws of different countries.
• More specifically, it involves study of the different legal system e.i In
existence in the world, including the common law, the civil law ,
socialist law, law, Islamic law, Hindu 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.
• MONTESQUIEU:
• According to the prevalent view, Montesquieu is regarded as the 'father' of
comparative law. His comparative approach is obvious in the following excerpt
from Chapter of Book I of what many consider to be his masterpiece, Del'esprit
des lois.
• BIRTH AS A DISCIPLINE IN THE U.S.
Comparative law was really born of the ashes of WWII, brought to America by a
legal scholar fleeing persecution in Germany, Rudolf Schlesinger. Schlesinger
eventually became professor of comparative law at Cornell Law School helping to
spread the discipline throughout the US.
 PURPOSE, IMPORTANCE & NEED OF COMPARATIVE
STUDY

• ACADEMIC STUDY
• ANALYSIS-
• DIFFERENCES-
• SIMILARITIES-
 NEEDS OF COMPRATIVE LAW
• to attain a deeper knowledge of the legal systems in effect
• to perfect the legal systems in effect possibly,
• to contribute to a unification of legal systems
• goal to universalize what we think is right
• Establishment of Transnational Nongovernmental organization
(NGOs)
• Mere curiosity toward other countries
• Dissatisfaction with traditional approaches
• Emergence of developing countries
• To interpret a constitution - to write a constitution
• The Borrowed Statute Doctrine
 IMPORTANCE OF COMPARATIVE
STUDY
• Comparative law is a very important discipline in communication between legal
systems.
• It may provide the basis for the production of bilingual that includes the
information necessary to make dictionaries legal communication across borders
successful.
• It also helps mutual understanding and the dispelling of prejudice and
misinterpretation.
• In this localizing world, comparative law' is important for it provides a platform
for intellectual exchange in terms of law and it cultivates a culture of
understanding in a diverse world.
• Furthermore, comparative law helps in broadening horizons for law reformers
and legislators around the world.
• It can also be helpful in international relations in shaping foreign policies.
• The Canadian Supreme Court has granted a considerable level of
meaningful autonomy in R V. SPARROW, 1 SCR 1075 (1990)
The rich cross-fertilization of constitutional ideas and the active
dialogue b/w judges are having with foreign precedents will be grist for
other comparative constitutional law scholars to mill the timing of this
book's publication could not have been better, the international and
comparative constitutional law influences high profile cases.
• In Lawrence V. Texas Justice Kennedy cited DUDGEON v. UNITED KINGDOM a
decision of the European court of human rights striking down laws that
proscribed consensual homosexual conduction Northern Ireland, as persuasive
authority for the point that Western civilization has come to view anti-sodomy
laws as mere prejudice and a violation of the rights of a politically unpopular
group.
• And in GRUTTER v. BOLLINGER, justice Ginsburg's concurring opinion, joined by
Justice Breyer, cites both the international Convention on the elimination of all
forms racial discrimination and the Convention on the elimination of all forms of
Discrimination against Women in support of the majority's insistence that
affirmative action programs have an end point.
 BENEFITS OF COMPARATIVE LAW
''Comparative Law identifies four benefits:
1. ''comparison exposes students to a range of models that illuminate the
meaning or foundation of constitutional justice in our time."
2. "comparison enhances our power of discernment by enjoining us to
differentiate the accidental, particularistic, or autobiographical elements of
constitutions from their more general, inclusive, or universalistic components;
''
3. "comparison shows that we Americans are not altogether exceptional and
that, with respect to human rights and democratic governance, we have much
common with other constitutional democracies ''' and
4. ''we compare to observe differences, and here i refer to many contrasting
constitutional currents in the light of which Americans might wish to reassess
our own fundamental law"
 TYPES OF COMPARISON
• MICRO- OR MACRO
• COMPARISON ON A COUNTRY-BY-COUNTRY BASIS
• Thematic comparison i.e. subject by subject
 STATUS OF COMPARATIVE STUDY
• Legal science : Comparative constitutional law is a legal science.
• Academic discipline
• Part of every legal research
• Part of cultural studies
• Part of the practice of law
• Relationship with other legal subjects
Thank you