COMPARATIVE LEGAL RESEARCH – SIGNIFANCE, STRATEGY, SCOPE AND

LIMITATIONS

Prof. P. Ishwara Bhat

University of Mysore

Introduction

Comparison is a logical method of reasoning that enables objective identification of

merits and demerits of any system, procedure or institution as compared to others. Even in
ordinary reflections and estimations in day to day transactions, people tend to compare and
contrast. Its relevance for legal research consists in comparative evaluation of human experience
occurring in different circumstances and countries. As K. Zweigert and H. Kotz point out, “the
method of comparative law can provide a much richer range of model solutions than a legal
science devoted to single nation, simply because the different system of the world can offer a
greater variety of solutions than could be thought up in a life time by even the most imaginative
jurist who was corralled in his own system… it extends and enriches the ‘supply of solutions’
and offers the scholar of critical capacity the opportunity of finding the ‘better solution’ for his
time and place.” In brief, it augments knowledge by discovering different models for preventing
or resolving social conflicts. It widens the dimensions of critical legal research by comparing,
contrasting and exposing to larger social experiences about law and legal system. Since different
human communities in different parts of the globe approach the values of human rights,
democracy, cultural pluralism, development, welfare and democracy through their own distinct
models and institutions, the valuable lessons about the success and failure, and ease and the
difficulties provide input for critical evaluation.

In India, legal research has grown with comparative study from the days of
enactment of Indian Penal Code. The Law Commission’s extensive deliberation on different
models and policies relating to criminal liability in Common law, continent and American states
in addition to the existing indigenous law during the formulation of the Code is a pioneering
example of comparative legal research.
Along with growth of the legal system with codification of laws, absorption of common
law and continuation of pluralistic personal laws, which were handled by the judges under the
British system, practice of looking to the English experience developed. Making of the
Constitution provided a great opportunity for comparative research both at the drafting and
discussion stage. Relating to core values, institutions, models and control mechanisms or power
equations in the Constitution the influence of other leading constitutions of the world was kept
open. However, the factor of influence cannot be exaggerated as the mature wishes of popular
sovereignty were exploring choices suitable to Indian socio-economic and political
circumstances. There was no question of apish imitation or senseless borrowing. The element of
autochthony was strongly built by the Indian vision formed through freedom movement and
cultural ethos; response to people’s problems like poverty, illiteracy, social backwardness and
communal disharmony’ and aspiration for democratic governance, multiculturalism and national
unity. But models or strategies for putting them into literal framework was something searched
in the constitutional experience of other jurisdictions. The drafting of and discussion on
Preamble, Fundamental Rights, Directive Principles of State Policy, Parliamentary form of
Government, Federalism, separation of powers, judicial review and amendments got great
amount of input from comparative constitutional law spread over USA, UK, Canada, Ireland,
Australia and others. Subsequent constitutional development through judicial decisions and
academic research made use of foreign precedents and comparative constitutional literature. A
perusal of Law Commission’s research, study and recommendations, which constitute massive
literature, make extensive survey of comparative legal literature. In the field of environmental
law, business and trade law, Consumer protection and corporate law comparative study of
domestic and international legal systems has greatly contributed towards concretization and
refinement of legal policies. Intellectual property law and information technology law have been
developed by extensively borrowing from international agreements and Conventions.

In this paper an attempt is made to understand the nature, importance, contributions,

opportunities and difficulties relating to comparative legal research in the Indian context. It
argues that while wide potentiality and justification are there for comparative legal research, it is
a means or resource not adequately tapped.

Meaning
Basically, comparison is a process in which two things are measured by each other (TS
Eliot). Comparative Legal Research (CLR) is a systematic exposition of the rules, institutions
and procedures or their application prevalent in one or more legal systems or their sub-systems
with a comparative evaluation. It may be doctrinal or non-doctrinal, theoretical or fundamental.
Comparative law denotes a method of study and research and not a distinct branch of law (HC
Gutteridge). It contemplates comparison of systems rather than mere legal precepts (Roscoe
Pound). This perception has substantive social dimension as it looks to the whole comprehension
of traditions underlying the systems and the socio-economic factors that constitute their parts. It
is the totality of the system to be compared, not in fragments (Le Paulle). In the course of
comparative legal research (CLR) the researcher resorts to not mere informational presentation
with juxtaposition, but seeks insight about the process of growth, functioning and habits of
thoughts; and evaluating the social purpose of law. It is not mere professional tool or an
academic toy (O Kahn –Freund).

Aims and purposes

1. Comparative legal research provides clarification of the perspectives, the conditions and
alternatives for all communities for securing and enhancing democratic values (Mc
Dougal).
2. It aims to know how universally the premises of justice and other values are shared. What
moral assumptions, cultural traditions, historical experiences and economic
considerations are reflected in a given society’s attitude towards the problem of social
control?
3. Pooling of variety experiences and best contemporary wisdom in the light of which
promotion of critical understanding of one’s own legal system will be possible.
4. It enables promotion of understating between different communities and nations with a
view to reduce world’s tension. Comparative law must resolve the accidental and divisive
differences in the laws of peoples at similar stages of cultural and economic development,
and reduce the number of divergences in law, attributable not to the political, moral or
social qualities of the different nations but to historical accident or temporary or
contingent circumstances (Lambert).
5. Harmonization of law and bringing uniformity or reducing the differences will be
possible. Cross-fertilization and transplantation of legal norms, institutions and
approaches and mutual influence amidst different systems can be traced and examined
from social transformation perspective.

Method of Comparative Legal Research

 Descriptive analysis of observation of different systems is the primordial task involved in
CLR. It goes beyond satisfying idle curiosity; it goes deep into the doctrinal rationales
behind divergent legal systems; analyses traditions as storehouse of information and
resource for reliance. Since law is also a cultural phenomenon and manifestation of
tradition true understanding of the historical, social and cultural background of the
different systems is essential for evaluation of their comparative merits and demerits.
 CLR operates at three stages: Comparative nomo scopy – description of other systems of
law; Comparative nomo ethics – assessment of relative merit; Comparative nomo
genetics – study of development of the system of law in relation to one another. For
conducting such study, broad historical grounding in the socio-cultural contexts of the
legal systems is vital.
 Choice of countries or legal systems is a crucial step for CLR. The choice should
accommodate diversity of features. Study of similar systems would repeat and reaffirm
the proposition or experience. Differences are good points for comparison. The chosen
countries might be neighbours or distant nations; developed countries or developing
countries or least developed countries; democratic or totalitarian systems; those with
high human right tradition or those without it; countries in the same continent or in
different continent. Considerations in choice of sample survey may help here also.
Further, availability of legal literature, especially reliable primary source, on the subject
in different countries and choice of appropriate material shall also be considered.
 Applied CLR resorts to functional comparison for the purpose of law reform and
unification of divergent law. This consists of ascertaining the essentials from accidental,
the causes from differences, and examining their operation in the context of social
environment in which legal system operates.
 Macro comparison is one kind of approach under CLR. This involves the study of legal
families or grand systems debate. Five factors central to the legal family – background,
predominant characteristic, distinctive legal institution, kinds of sources and ideology –
are to be looked in a holistic manner. The examples of legal family are: Romanistic,
Germanese, Nordic, Common law, Hindu Law, Islamic tradition and Chinese Law.
 Micro Comparison is the other kind of CLR approach. The focus is on smaller units for
manageable comparison. The focus may be on positive laws; on western capitalist
societies; on legal doctrine; on law of obligation; or on description. Its task is analysis
and explanation rather than evaluation. It is concerned with identification of similarities
and differences and working on them. Examples: comparative study of the guarantee of
freedom of speech and expression; or of interrelationship of fundamental rights.
 Mapping method in CLR takes into consideration purpose, level of comparison, units of
comparison, differentiation and constructs the total picture.
 Pattern of comparison may take any of the following approaches: parallel studies, looking
to one’s own system through foreign eyes, looking to foreign system through one’s own
culture, and applying foreign theories or ideas.
 Use of paradigms like human rights, social justice, feminism, welfare, social
transformation, multiculturalism and post modernism provides thematic unity and
analytical tool for comparison. Although one cannot compare apples with oranges in the
absence of criteria which results in incommensurability, it is quite possible to compare
them upon the criteria of roundness, acidity, color, sweetness, price and so on(Patrick
Glenn). Hence developing appropriate criteria for evaluation becomes important task of
the researcher. Success of CLR depends much upon the suitability of the paradigm
developed. Absent proper paradigm, CLR becomes rudderless and gets reduced to the
position of water tight juxtaposition statement. Searching for values beyond the
comparative position adds to CLR’s success.
 Legrand emphasizes four major points which shall be invariably considered for effective
CLR: (i) commitment to theory; (ii) commitment to inter disciplinarity; (iii) readiness to
acknowledge the difference rather than seeking to operate on the basis of assimilationist
approach; and (iv) to be critical at all times. Raising fundamental questions, appreciating
the true nature of foreign system and comparing rather than mere contrasting go a long
way towards the success of CLR. Werner Menski finds faults with the deviation from
this: “Comparative research and analysis is often undertaken with a myopic, narrow view
that is, in essence, simply limited to the staid and dry juxtaposition of the regulations of
one legal system with those of another, with little or no critical analysis.”

Scope and Potentiality

CLR thrives in the context of diversities. Three sources of diversities can be identified
here. First, diversity may lie within the country. Federalism produces diverse legal systems at
the level of federating units and hence provides vast scope for comparison. Land laws,
agrarian laws, local variation of central laws under concurrent list with President’s assent,
laws on local self governance, service conditions of state employees, laws on registered
societies and cooperative societies, laws on charities, trusts and endowments vary from state
to state. States have become laboratories for experimenting legal policies within the
constitutional framework. Further, multiculturality also produces diversity. There are not
only religion based personal laws like Hindu Law, Muslim law, Christian law. Within such
laws also there are different schools and local variations owing to distinct customs and
usages. Moreover, laws relating to welfare of tribal communities are also diversely
developed. A rich field for CLR emerges even within the country.

Second, diversity of approaches amidst various countries, whether free democratic

nations or otherwise, gives scope for CLR. Constitutional laws of different countries offer
opportunities for comparison. Such comparison may be about the values, institutions,
precepts and provisions; about control mechanisms and their functioning; or about trends of
development as emerged in judicial and other constitutional practice. Various spheres of
public law – criminal law, torts, contracts, consumer protection, environmental law, taxation,
prison reforms, third sector laws and administrative law – provide scope for fruitful
comparison. About diverse traditions like Common Law, Civil law, Asiatic law (including
Hindu, Islamic, Chinese, Thai, Japanese, Indonesian, Malayan etc), there is scope for CLR.
Third, experiences and positions of domestic legal systems can be compared to the
international standards and benchmarks set by the international law. Regarding human rights,
gender justice, development, promotion of social harmony and peace, resolution of
international conflicts, norms of international trade, and protection of environment
comparison of the domestic position with the international standards could be made. With the
mammoth growth of WTO law and international human rights law there is expansion of the
potentiality for CLR.

Globalization has also triggered the necessity of CLR because of close interaction of
different countries and legal systems because of trade other relations. While in the past
Asiatic law was ignored by the Western scholars, there is development of interest in modern
times.

Limitations of CLR
 Lack of understanding or inadequate knowledge about the social, cultural,
historical and other factors that influence the legal system is a serious handicap in
comparison.
 Culture specific experiences cannot be generalized as universally valid.
 Choice of improper paradigm or wrong premis for comparison defeats the
efficacy of study.
 Language in which the knowledge system of law was developed might not be
familiar to the comparer.
 Difficulty may arise with regard to availability of data, primary and secondary
resources.
 Strong intellectual tradition of CLR is lacking; dull and dry juxtaposition of the
legal regulation of one system with that of another with little or no critical
analysis does not serve purpose.

Contributions and attainment

Law Commission of India has used the CLR tool quite extensively and beneficially.
Criminal law reforms of procedural law, alternative dispute resolution, plea bargain,
governmental liability, judicial commission, intellectual property rights, reforms of personal law
terrorism and other important topics have been discussed by Law Commission by making
extensive reference to comparative law.
Specific Commissions like Commission on Centre-State Relations (Sarkaris
Commission), National Commission to Review Working of the Constitution (M N
Venkatachaliah Commission), Administrative Reforms Commission, and Committee on
Criminal Law Reforms (Mallimath Committee) have used the method of CLR.

While CLR was a major tool in the making of the Constitution, courts have carried the
comparative constitutional discourse in good number of cases during the formative period.
Judgments on procedural due process, quality, expressional freedom, death penalty, suicide,
religious freedom, minority right, federalism, interpretation of legislative entries, inter-state
water dispute and amendment have made reference to foreign precedents. This does not mean
that they have been invariably followed. After the Kesavananda case (1973) judicial decisions on
constitutional matters have relied more upon the Indian material and the practice of CLR has
been found to be that helpful especially inn the context of Public Interest Litigation and positive
right to life cases. Unparalleled judicial activism either kept aside CLR or gathered slender
support from CLR whenever suitable. Indian constitution’s emphatic focus on social justice
makes CLR only subordinately useful.

In the field of administrative law CLR has extensively contributed in shaping the law
relating to extent of delegation of legislative power, identification of nature of power, principles
of natural justice, control of discretion, administrative liability, promissory estoppels, right to
information, ombudsman and control of public undertakings. In the course of drafting legislation
like Companies Act, MRTP Act, Competition Act, Consumer Protection Act, and intellectual
property laws CLR is made use of.

Academic research in recent times has shown lesser use of CLR as the major research
tool. Along with historical, analytical and philosophical discussion CLR is also applied here and
there. The need for more focused study of Indian scenario, lack of access to comparative material
and the hard work involved in reference deter the present day researchers from plunging into
comparative study. Doctoral works by Indian researchers, now – a days, give lesser role to CLR.
But standard legal journals still carry research articles with CLR component.
Conclusion
Human experiences on specific problem or issue in different contexts and countries can
be better appreciated and evaluated when they are compared. CLR provides valuable tool for
legal research as it spreads the canvas of community experience wide. The danger of reducing
CLR into juxtapositional statement with superficial contrasting shall be avoided by making a
methodic use of CLR. While CLR has served the cause of growth of Indian legal system, lack of
strong comparative tradition and dwindling interest in CLR amidst the academic scholars and in
the rungs of higher legal education are problematic factors for its flourish. Nevertheless,
globalization and universal human rights principles demand an augmented role for systematic
CLR.

Reading materials
Rahmatulla Khan et al, An Introduction to the study of Comparative Law (New Delhi: ILI and
Bombay: NM Tripathi, 1971, 1979)

Roscoe Pound, ‘What we may expect from Comparative Law?’ 22 ABAJ 56 (1936)

Roscoe Pound, ‘Philosophy of Law and Comparative Law’ 100 U Pa L Rev 1 (1951)

O Kahn-Freund, ‘Comparative Law as an academic subject’ 82 LQR 45 (1966)

Lepaulle, ‘The Functions of Comparative Study of Law for Policy Purposes’ 1 Am J Comp
L34(1952)

H Patrick glenn, Legal Traditions of the World 3rd (Oxford: Oxford University Press, 2007)

Werner F Menski, Comparative law in a global context: The Legal systems of Asia and Africa
(London: Platinum, 2000)

Carl F Stychin and Linda Mulachy, Legal Methodd, (2nd Ed London: Sweet & Maxwell, 2003)

K.Zweigert and H. Kotz, Introduction to Comparative Law (3rd Ed Clarendon Press, Oxford
1988)

PM Baxi, ‘Legal research and Law Reform’ in SK Verma and Afjal Wani, (Ed), Legal Research
and Methodology (2nd ed New Delhi: Indian Law Institute, 2001)