Comparative Method of Legal Research

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57 JILI (2015) 147

Comparative Method of Legal Research: Nature, Process and Potentiality
COMPARATIVE METHOD OF LEGAL RESEARCH: NATURE, PROCESS AND POTENTIALITY

by
P. Ishwara Bhat*
ABSTRACT
Amidst various methods of legal research, the comparative method is growing in
importance due to increased interaction of experiences among the legal systems.
Plurality inside and outside the nation has called for comparing and evaluating.
Better understanding, wider choice of reform and harmonization are the objectives
of comparative legal research (CLR). In order that CLR traverses a systematic path,
definite procedural steps shall be followed prudently. Unless care is taken to
properly identify the criterion of comparison and selection of comparative elements,
CLR faces the danger of being reduced to a dry juxtapositional statement. A sound
theoretical base, immersion in cross-cultural discourse and critical insight of
sociology make CLR strong. CLR supplies varieties, analogies and contradictions
that help in building the comparative jurisprudence.
I Introduction
COMPARISON IS a logical and inductive method of reasoning that enables objective
identification of merits and demerits of any norm, practice, system, procedure or
institution as compared to that of others. Even in ordinary reflections and estimations
in day to day transactions - whether purchase of goods, making of investments, or
choice of learning, vocation, policy, leader or relations - people tend to compare and
contrast. Comparative study is a tool employed in various disciplines, both in natural
and social sciences. Its relevance for legal research consists in comparative evaluation
of human experience occurring in legal domains of different situations and
jurisdictions. While a tunnel vision seriously narrows down the object of scrutiny,
looking out of the caves in a free roaming world embraces universal humanistic
outlook not limited by political frontiers.1 From the times of Aristotle to
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the present day, comparisons of laws, legal systems, governance, and polities have
enriched the realms of knowledge and enabled the development of various legal
systems. Since ideas are as free as air, and nobody has monopoly on them, benefiting
from the experience of others in avoiding errors and searching for alternatives should
not have objections except that care shall be taken about suitability of the lesson to
the ambience of the system. In the globalized world, the role of comparative research
is growing with great potentialities. This paper aims to understand the nature,
development, importance, purposes, process, contributions, opportunities and
difficulties relating to comparative legal research (CLR). It argues that while there are
wide potentiality and justification for CLR, it is a means or resource not adequately
tapped.
II Meaning and features

Basically, comparison is a process in which two things are measured by each other.2
Nils Jansen views, “[c]omparison is the construction of relations of similarity or
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dissimilarity between different matters of fact.”3 Search for common or dissimilar

properties is the essence of comparison. It is with reference to specific factor or
criterion that similarity or difference comes to the forefront in the course of
comparative analysis. For example, comparison of apple with orange (which are
proverbially regarded as un-comparables) will be possible by applying the criteria of
taste, nutritional value, shape, colour, or price. The criteria of differentiation or
similarity can be called tertium comparationis.4 Choice of relevant criterion and its
objective application forms the sine qua non of comparative research. Comparison is
indispensable for progress of knowledge, as Yves Chevrel puts it.5 Etymologically,
‘compare’ consists of putting together (com) several objects or elements in order to
examine the degree of similarity (parare) so that conclusions can be drawn which
would not have been possible by analyzing one element alone.6 Whether comparison
shall start with
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presumption in favour of similarity or with that of difference is a debatable point

amidst legal scholars.7
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 after objective estimation of their similarities and differences
and their implications. CLR may be doctrinal or non-doctrinal, theoretical or
fundamental, historical or contemporary, qualitative or quantitative. CLR is also known
as comparative law. But there is controversy whether comparative law is only a
method or includes a perspective.8 According to Zweigert and Kotz, it suggests an
intellectual activity with law as its objects and comparison as its process.9 H.C.
Gutteridge regards comparative law as denoting a method of study and research and
not a distinct branch of law.10 It contemplates comparison of systems rather than
mere legal precepts, writes Roscoe Pound.11 This perception has substantive social
dimension as it looks to the whole comprehension of traditions underlying the systems
and the socioeconomic factors that constitute their parts. It is the totality of the
system to be compared, not its fragments.12 In the course of CLR the researcher
resorts to not mere juxtaposition presentation of information, 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, but it takes us
beyond the compared factors and gives insight to the underlying ideas.13 CLR enables
building theory on the basis of varieties of experience, and has sound
phenomenological background in bottom-up approach or inductive reasoning. It can
deal with, what Sujit Choudhry and other scholars call, migration of ideas.14
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CLR flourishes with diversity of legal systems and patterns. Looking to the distinct
principles, procedures, approaches and institutions, legal systems can be grouped into
four major legal families in the world: common law, civil law, socialist law and religion
based law. There are mixed legal systems owing to superimposition of different
colonial laws upon the same community or because of co-existence of diverse
indigenous laws and customs along with state law. The presence of international law
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and regional arrangement amidst nations has also added to diversity. In federal
states, plurality of laws based on multiple regional choice has become imperative.
When state recognizes religion based personal laws, it leads to plurality. They are
products of traditions and cultures. Legal tradition reflects deeply rooted and
historically conditioned attitudes about the institution of law, and it puts the legal
system into cultural perspective.15 It provides conceptual understanding of normative
information.16 Patrick Glenn recognizes multiple inner traditions within the major
traditions.17 For example, Mitakshara and Dayabhaga and their sub-schools and
practices under Hindu law, and Hanafi, Maliki, Shafi and Hanbali amidst the Sunnis
and Shias under Muslim law have produced diversity. In such a heterogeneous world,
scope for comparison is enormous. Gathering the diverse character of legal systems,
Peter De Cruz defines comparative law to describe the systematic study of particular
legal traditions and legal rules on a comparative basis. Necessarily it involves
comparison and contrast of two or more legal systems.18
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.”19 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. It enables better understanding of legal data.20 Since
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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, problems and solutions and case and the difficulties provide input
for critical evaluation.21 For knowing the value and use of quinine, it is not necessary
that it should be grown in one's own backyard.22
CLR operates, according to Wigmore, in three forms: 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.23 For conducting such study, broad historical grounding in the
socio-cultural contexts of the legal systems is vital.
Descriptive analysis by 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. The 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. Contrasting insider's estimations of all systems, mapping the institutional
structures of diverse concepts and interpreting the diverse legal rules in that light are
the implications of CLR, as John Bell views.24
Inter-disciplinary study adds to the worth and efficacy of CLR. Historical, socio-legal
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and economic dimensions of legal regimes provide rich input, and the understanding
of the law in that light makes CLR more meaningful. Since law of a country is an
amalgam of solutions to problems faced in the past; since each legal concept is tied to
a certain conception of social order which determines the functioning of law; and since
historical critique of the concepts of legal systems and legal families joins hands with
functionalist comparison, relation of mutual assistance between CLR
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and historical method of legal research can be found.25 In view of widened recognition
of law-society relations and law-development dimensions in legal study, empirical
studies of the culture and functioning of laws and legal systems in different
jurisdictions provide synergy between the works of CLR scholars and socio-legal
scholars.26 The issues of legal pluralism, tradition, religion, community and family
bring socio-legal and CLR studies together. The interaction between comparative law
and economic analysis of law can happen in such a way that each is the subject matter
of the other, as per Florian Faust.27 For example, comparative economic analysis of
contract law can unravel economic benefits or burdens of contract law operating in
multiple systems. The comparative economic analysis of strict liability may address
the issue of legal relations between pesticide factory and neighbours and their
economic implications. While scholars like Legrand emphasize complex cultural and
interdisciplinary comparison, its practical viability is questioned by other scholars.28
They regard that interdisciplinary approach requires a homogenous and unique field of
investigation, which cannot be availed in comparative study.29 It is true that empirical
comparative study is prohibitively expensive. But use of data from non-law social
sciences and secondary materials for interdisciplinary research can help in CLR.
The relations amidst diverse legal systems form another important matter, which is
addressed by comparative law. Legal transplant, reception, borrowing, adoption,
export, import, repatriating, cross fertilization and migration are some of the types of
such relations. The relation is either genealogical or analogical. Each prototype has
raised interesting debate about legitimacy of the process of transfer/influence, and
extent of its acceptability. From the angle of national interest and autochthony, such
debate is lively in the context of globalization and efforts of harmonization of law.
Historical and anthropological studies focus on development of the legal system
through these relations.30
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III History and development of comparative legal research

The genesis of CLR is traceable to Aristotle's Politics which is a treatise raising high
level of generalizations based on information gathering efforts from different systems
of governance, and could safely be regarded as the first piece of comparative law.31
Roman law gathered support from jus gentium, which Gaius calls ‘the law that natural
reason establishes among all mankind and is followed by all people alike.’32 While in
the early middle ages, the bringing of awareness of different sources of law and
occasional attempts to juxtapose them for choice or better appreciation continued, in
the middle ages, scholars like John Fortescue engaged in extensive comparison of the
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French and English legal systems. Jean Bodin projected the idea of supremacy of
commonwealth upon other systems by extensive comparison.33 Montesquieu produced
his monumental work on law and power by resorting to comparative study not only of
the systems of governance but also of the geographical, institutional and social forces
that shaped them.34 These works had impact upon the French Civil code. With the ups
and downs, CLR continued its tradition in various parts of Europe. In Germany,
Switzerland and Austria, CLR flourished in the 19th century with good amount of study
of law on trade and industry prevalent in various countries. Ernst Rabel propounded
functionalist approach of CLR. He regarded that instead of using foreign legal system
as a quarry, CLR should analyze not only individual rules, but also the problems which
they refer to and solutions that they give.35 It should consider everything that affects
the law, such as geography, climate, race, developments and events shaping the
course of country's history. Real life problems are to be addressed in light of shared
experience of various countries and communities. In the 20th century Max Planck
Institute of comparative law became a hub of comparative study in the fields of public
law and commercial law. With the efforts of harmonization of law of sales under United
Nations Commission on International Trade Law (UNCITRAL) and Hague-Visby rules
and increased application of conflicts of law, CLR attained great significance.
Italian legal scholarship has anchored on strong tradition of CLR in the background
of unification of Italy and reception of legal innovations abroad.36 German Civil Code
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and Anglo-American model produced layers of influence to which Italian reception was
prone. Mauro Cappeletti is a notable comparatist of constitutional law. University of
Trento theorized about CLR that mere cultural excursion to or parallel exposition of
certain field does not amount to CLR, but finding the differences and similarities do;
that historical study is essential for CLR; and that CLR shall test the coherence of the
various elements present in each system.37
CLR in Britain made a big contribution owing to the efforts of eminent comparatists
and challenges of interactions with different legal systems across the globe.38 Henry
Maine regarded the chief function of comparative jurisprudence to facilitate legislation
and practical improvement of the law. Knowledge of commercial law of other countries
became essential for conducting trade. Society of Comparative Legislation was also
established for its encouragement. According to H.C. Gutteridge, the pioneer of CLR in
Britain, the function of comparative lawyer included ascertainment of conflicting rules
of law emerging from differences in conceptions of rights and duties.39 He emphasized
the vitality of CLR for private international law, for promotion of trade, and for national
law reform. Walton involved in extensive CLR on French and British law on obligations
and court procedures which attained substantive significance in Canada and Egypt. He
expressed dissatisfaction against wholesale transplantation of legislation as amounting
to acts of errant thieves, and believed that uniformity is not only unnecessary but
detrimental to diversity which can creatively influence each other.40
In the United States (US), CLR got impetus because of diversity of laws and
procedures amidst states within the US. But it has suffered a set back in the context of
Supreme Court's task of interpreting the federal Constitution because the court is
generally averse to refer to foreign precedents. Unlike the Canadian and South African
Supreme Courts, which act under express provisions in the Constitution to consider
the practices “demonstrably justified in free democratic societies”41 and hence refer to
Indian and non-European cases,42 the American Supreme Court resisted the influence
of foreign precedents by declaring “comparative analysis inappropriate to the task of
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interpreting a constitution.”43 The minority view of Stephen Breyer J44 that
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foreign source is relevant, informative and helpful in guiding the process of

interpretation in the matter of delay in death penalty executions influenced the
majority of the court in a 2005 case to regard that the foreign sources “while not
controlling the outcome. provide respected and significant confirmation for our own
conclusions.”45 Breyer J, in his dissent, criticizes the selective approach in the matter
of foreign precedents. The American judges' approach of exclusively referring to the
standards of decency of American society rather than that of other countries is based
upon the distinctive culture and morality of America. When the judicial appointments
in other countries have a different pattern, and other constitutional arrangements for
inter-organ control provide for different mores, Roberts and Kennedy JJ took
conservative stance towards expansion of foreign law's influence.46
In India, legal research has grown with comparative study from the days of
enactment of Penal Code, 1860. The Law Commission of India'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.47 Making of
the Constitution provided a grand 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 liberal 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
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spread over US, UK, Canada, Ireland, Australia and others. Subsequent constitutional
development through judicial decisions and academic research made use of foreign
precedents and comparative constitutional literature. The search for optimal
constitutional design by the nascent democracies is a general practice. According to
Upendra Baxi, “[c]onstitution-makers everywhere remain concerned with the best
constitutional design; however, that ‘best’ consists in ‘shopping’ around available
models and adapting these to their needs and aspirations. The eventual mix, or more
picturesquely put, the ‘bricolage’, is constrained by history interlaced with future-
looking aspirations for social transformation.”48 A perusal of law commission's
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research, study, and recommendations, which constitute massive literature, gives a

glimpse of 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. The commissions on centre-
state relations and the National Commission to Review the Working of the Constitution
made use of comparative study along with other methods. Intellectual property law
and information technology law have been developed by extensively borrowing from
international agreements and conventions as in other countries. The treatises on
constitutional law by D.D. Basu and H.M. Seervai have made extensive use of CLR. In
number of landmark judgments of the Supreme Court relating to equality,
expressional freedom, business, property right, right to life and personal liberty, death
penalty, right to privacy, religious freedom and minority rights one can find reference
to foreign judgments in the course of interpretation of constitution and laws.49 The Naz
Foundation judgment of the Delhi High Court has greatly used foreign judgments.50
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IV Aims and purposes

Firstly, CLR provides clarification of the perspectives, the conditions, and
alternatives for all communities for securing and enhancing democratic values.51 It
aims to know how universally the premises of justice and other values are shared52
and what moral assumptions, cultural traditions, historical experiences and economic
considerations are reflected in a given society's attitude towards the problem of social
control.53 By providing functionalist insight and doctrinal input, and by engaging in law
-society discourse, it aims to add to the quality of research.54 Legal education becomes
more robust with increased application of CLR as it enriches supply of solutions.
Secondly, by pooling of variety experiences and best contemporary wisdom, CLR
can promote critical understanding of one's own legal system. As Geoffrey Wilson
points out, “[c]omparative studies have been largely justified in terms of the benefit
they bring to the national legal system.”55 When legal doctrine is a prominent factor in
the functioning of law, knowledge of its growth in other jurisdictions will throw light on
its efficacy in dealing with the problem in specific social and economic context and
factors responsible for its success or failure.56 Both the empirical study and CLR have
strong links with the legal doctrine, and also establish mutual relation within
themselves.57 The eclectic approach broadens the analysis of individual study. It helps
in solving particular problems by providing alternative models for legislative draftsman
or legislator and by helping interpretation of national rule of law. Law commissions and
courts find CLR as extremely useful tool for their problem solving function.58 In legal
research for law reform, comparative study is the most common component of
multimodal research.59
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Thirdly, CLR enables promotion of understating between different communities and

nations with a view to reduce world's tension. Comparative law must resolve the
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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.60 Unification of law in the area of
the law of obligations, intellectual property law, and conflict of laws will be possible
through CLR by looking to the common elements in different legal systems. After the
emergence of TRIPS, TRIMS and GATS under WTO formulation of legal policies
presupposes study of the approaches of other legal systems on vital aspects of trade
and commercial law.
Fourthly, harmonization of law and bringing uniformity or reducing the differences
will be possible through CLR. At the international level, Hague-Visby rules and
UNCITRAL were products of harmonization. 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. In the
Indian context, the policy of uniform civil code (UCC) contemplated in the Constitution
can be worked out on the basis of extensive comparative study of diverse personal
laws and customs. However, unification of law at the cost of identity of individual
component is not favoured in many discourses including the debate on UCC.
Fifthly, when the domestic courts apply the foreign law or foreign judgments, study
of foreign law becomes inevitable. “The process of rule finding can function properly
only if the judge is ready to look for both similarity and difference without giving
priority to either.”61
Finally, CLR facilitates choice between legal systems. The regulatory regime
governing property, environment, tax, investment and the procedural laws of different
legal systems are often compared before invoking the jurisdiction of the most
convenient system or before launching a new venture. As H.M. Watt observes, “[t]he
strategic importance of comparative law appears in the evaluation of the economic
attraction of given regulations and their institutional setting: Doing business abroad
means choosing the most efficient, but also the least costly, legal system.”62 The idea
of forum non convenience can be set into service on the basis of CLR. In the matter of
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liability issue relating to Bhopal gas leak tragedy when the jurisdiction of New York
court was invoked in 1980s, analysis of the forum non convenience issue made the
court to comparatively assess the competence and efficacy of the American and Indian
legal systems to resolve the matter.
V The method and steps of comparative legal research

Once the researcher decides that he should go for CLR because of the need to
survey diversity of experiences in relation to felt difficulty in a chosen field, he shall
plan his CLR carefully. This section explains various steps of CLR, but it does not
suggest rigid sequential order as the spontaneity of circumstances call for flexibility.
Statement of the problem
In the background of felt difficulties and unsatisfactory position relating to law, fact
or solution, the researcher has to state the problem. As Geoffrey Samuel writes, “the
researcher who is embarking on comparative work must first be very clear about his or
her research question, for it is this question that will largely determine what might be
called the model and programme to be adopted.”63 The researcher shall clarify the
need for comparative study by relating it to any of the purposes that are mentioned
above. Once he is clear about what he wants to compare, he can streamline the
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subsequent steps, viz., define the basis of comparison, select the comparative
elements or legal systems, and fine tune the CLR process by looking to the systems
and contexts and going beyond the texts. For example, a research work involving
comparative overview of six South Asian legal systems about governance of non-profit
organizations (NPOs) may clarify at the outset about the core research questions about
subjection of the NPOs to legal regulation, compulsion for good governance and
efficacy of law in ensuring the same.64 A research on constitutional protection of ethnic
minorities in India and Japan will focus on the issues of security, self-governance and
social justice as the means to be traced in the two systems.65
Choice of tertium comparationis
It is in relation to element ‘T’, the tertium comparationis, that similarity or
difference is searched in the course of comparative study.66 ‘T’ is not an
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objectively available yardstick in most of the circumstances, but it descends from a

choice about ‘what matters’, or which aspect of the law are relevant for comparatist.
Hence, CLR scholar has to be obsessed with common denominators and harmonization
factors.67 Legal arrangement for democratic functioning of NPOs or effective protection
to ethnic minority is the broad theme of T in the above examples. The sub themes of
‘T’ may touch upon impact of imposition of colonial rule, competence of indigenous
law, efficacy of control mechanisms in the above example of NPOs; or upon ethnic self
governance system or legal security measures in the example of ethnic minorities. In
comparing the German road traffic law with English law of negligence, the focus could
be on whether law treats the driver with lenience or sternness in shouldering the
blame rather than on differentiating mechanically between strict liability and fault-
based liability.
Emphasis in comparison: Similarity or difference?

Comparatist aims at drawing lessons from the approaches of different jurisdictions
to the same or similar problem. There is a general belief that the problems of life are
met with same or similar solutions of law as law is regulator of social factors in any of
jurisdictions and legal issues are similar. The presumption that practical results are
similar (presumption similitudinis) in relation to similar social facts motivated the
comparative lawyers like Gutteridge to start with search for minimum similarity in
order to avoid illusionary or absurd comparison.68 But the subsequent scholars like
Ancel and Legrand who contest this presumption, view that the purpose of
comparative law is identification of diversity of law, and give prominence to differences
or oppositions for contrasting in course of comparison (comparaison contrastee).69
Even the transplanted law has different consequences as it grows in different social
economic and cultural conditions as per Legrand.70 He views difference as more
fundamental than similarity.71 Macro comparison and comparison of social
atmospheres bring forth the differences even though the legal text might be the same
or similar.
Selection of comparative elements
The selection of laws, countries or legal systems for comparison is a crucial step for
CLR. While presence of minimum similarity avoids absurdity in comparison, prevalence
of differences avoids monotony and repetition. Hence, the choice should
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accommodate diversity of features amidst systems having at least some common

traits or dealing with same or similar problem. Differences are good points for
comparison. The chosen countries or geographical areas might be neighbours or
distant ones; developed countries or developing countries or least developed
countries; democratic or totalitarian systems; those with high human right tradition or
those without it; those with high Human Development Index (HDI) or with low ones;
countries in the same continent or in different continent. Considerations in choice of
sample survey may also help here. Further, availability of legal literature, especially
reliable primary source, on the subject in different countries and choice of appropriate
material shall also be considered.
The purpose of comparative study guides the selection of jurisdictions for

comparison. If the purpose is unification or harmonization, all the components coming
within the scheme shall be included. For example, harmonization of international trade
law shall be on the basis of comparative study of all the participating legal systems.
When the purpose is to know the comparative advantages and disadvantages of
different systems and bring reforms in home-law in their light, the choice of
comparative elements shall reflect relevant diversities. About the form of government
the contest and contrast might be between a presidential, parliamentary, semi-
presidential and collegiate models. Comparison between ordinary courts procedure and
tribunal's procedure satisfies the factor of similarity, as both will be on adjudicative
system but with radical differences.
In developing the principles of selection in inference-oriented comparative study,
Ran Hirschl uses J.S. Mill's canons of experimental research. By using the method of
agreement, the researcher shall select ‘most similar cases’ that have similar
characteristics that are matched on all variables or potential explanations that are not
central to the study, but vary in the values of the key independent and dependent
variables.72 Hirschl gives the example of comparative study of constitutional courts in
Asian countries to illustrate this canon. Alternatively, the second canon viz., the ‘most
different cases’ approach requires the researcher to compare cases that are different in
all variables that are not central to the study but match in terms that have consistency
on the key independent variables.73 When three counties have different approaches in
the matter
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of state's recognition of religion but exhibit similar tendency of popular support to

theocratic movement, the selection of them for comparison is appropriate. Application
of the third canon, viz., ‘joint method of agreement and difference’ contemplates that
when the researcher wishes to draw upon limited number of observations to test the
validity of a theory, the observations shall feature as many key characteristics that are
akin to those found in as many cases as possible.74 Comparison of the judicial process
in civil law and common law systems involves use of mixed methods. The fourth canon
i.e., the method of residue helps in selection of jurisdictions or cases by searching for
the most probable cause or the most difficult case.75 For example, in examining the
effectiveness of constitutional bill of rights in initiating social change, the study of
rights revolution in US, Canada and India becomes appropriate. The ‘none of the
above’ category can help in selecting those jurisdictions, which through the process of
exclusion, can suggest a newly identified explanation.
When in the matter of forming and performing treaty obligations, state practices
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differ in UK, US, Australia, Canada and India, the differences invite for a critical
estimate of different approaches and their comparative merits and weaknesses.
Selecting Hindu law and Mohammedan law for comparing the approaches about
succession, maintenance or marriage provides scope for contrasting the differences
and identifying the similarities. The limits on testamentary succession in
Mohammedan law and women's equal rights in Hindu law can be comparatively
assessed from the angle of compliance with gender justice. Marginalization of ethnic
minority's right in Japan and special protection to tribes through security, self
governance and social justice in India stand for good comparison. Within the federal
system, the extent of efficacy in implementation of centrally sponsored schemes like
food security law or rural employment guarantee law can be studied by selecting the
states which have good achievement in HDI and those which lag behind. The working
of panchayat raj in a district having more literacy rate or political consciousness can be
compared with that district which has lesser rate of performance. In sample selection
of village panchayats within a district, a village which is adjacent to main city and that
which is in far flung hilly area may be selected for contrasting. In a state where crime
rates relating to trafficking in women and children varies from district to district
because of the factor of international border and cross-border trafficking or difference
in the acuteness of impoverishment, selection of samples should enable contrasting
the differences.76 Thus, selection of comparative elements should come from proper
perception of similarities and differences. Preliminary study of their history, and social,
economic and cultural factors related to the legal realms enables such selection.
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Functionalist study
Linking comparison with the function of legal system widens the dimensions of CLR
as it brings sociological discourse into action. The applied CLR resorts to functional
comparison for the purpose of law reform and unification of divergent laws. 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. “Functionalist comparative law”, according to Ralf Michaels, “is
factual; it focuses not on rules but on their effects, not on doctrines or structural
arguments, but on events.”77 Further, it combines factual approach with the theory
that its objects must be understood in the light of their functional relation to society.
It believes in social engineering instrumentality of law. In this approach, function itself
serves as tertium comparationis and functionality can serve as an evaluative criterion.
It provides tool to understand the law effectively; it gives clues of comparability; in
the context of universality of social problems, it justifies presumption of similarity; it
systematizes the building process.78 It helps both synthesis and eclecticism of legal
rules. According to Mark Tushnet, “[t]he functionalist approach to comparative
constitutional law is similar to the universalist one to the extent that it tries to identify
things that happen in every constitutional system that is the object of study……
Functionalists believe that examining the different ways in which democratic nations
organize the processes of going to war and deciding emergencies can help us
determine which are better and which are worse processes.”79 Functionalist
comparison aids in critiquing foreign law and gives a cultural perspective to
understanding of the legal order. Jaakko Husa states that a functional approach
continues to be the basis of mainstream methodology of CLR, despite the criticisms.80
Cultural immersion
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As law is embedded in culture, understanding of it will be effective only if the

scholar has a kind of ‘immersion’ in culture.81 Roger Cotterrell views culture as
fundamental - “a kind of lens through which all aspects of law must be perceived, or a
gateway of understanding through which every comparatist must pass so as to have
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any genuine access to the meaning of foreign law.”82 Legrand regards culture as “the
framework of intangibles within which an interpretive community operates’ and as
‘ways of organizing one's place in the moral universe through commitments to
standards of reference and rationality.”83 Legal cultures supply fields of similarity to a
considerable extent, but also exhibit differences in power processes in initiating and
persuading change. Culture should be seen as the basis of participant's moral and
cognitive experience and give input for thorough understanding. Parts of law cannot be
studied outside their organic context.84 Legrand calls for looking into the
epistemological foundation of the cognitive structure which he names ‘legal mentalite’
and understand the legal texts in that light.85 “Legal texts are not to be treated as
objects in themselves - things capable for example of being transplanted from one
system to another - but as signifiers of something culturally more profound about the
‘other’”86 Cultural study flows both in the sphere of macro and micro comparisons.
Macro comparison
This involves the study of legal families or engagement in grand systems debate.
The examples of legal family are: civil law, common law, religion based laws (Hindu
Law, Islamic Law, Talmudic law), regional laws (Japanese law, African law and Chinese
Law). Differences prevail amidst legal families whereas similarities prevail amidst
member legal systems of each legal family. Hence, macro-comparison may bring out
differences or similarities depending upon affinity or non-affinity of the systems to
legal family. 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. Study of non-legal materials - geography, history,
sociology, economy, politics and culture - provides valuable input for macro-
comparison. For example, a glimpse of differential positions on these matters in India
and Japan in the matter of ethnic minorities clarifies the reasons and justifications for
different legal approaches. The aim to realize human rights and the working of
democratic structure may provide factors of similarities. Ignoring of these aspects
weakens CLR.
Micro comparison
Comparison of specific rules to resolve a particular problem can be called micro-
comparison. The focus is on smaller units for manageable comparison. The focus may
be on positive laws; on specific legal doctrine or precedent; on legal institution;
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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 in
the US and India; or of interrelationship of fundamental rights in India, US and UK; or
of forming and performing treaty obligation in US, Australia, Canada and India. While
hard lines of distinction between macro-comparison and micro-comparison do not
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practically exist, their mutually complementary character shall be perceived.
Paradigms for comparison

Use of paradigms like human rights, social justice, feminism, welfare, social
transformation, multiculturalism and post modernism provides thematic unity and
analytical tool for comparison. 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 or dry listing of
similarities and differences without much gain. Searching for values beyond the
comparative position adds to CLR's success. The comparatist ventures suggestion of
new point of view and consideration of all the different solutions from such
perspective. Freeing the solution from the context of its own system and using it as a
free roaming proposition helps the process of migration of ideas.
Suggestions for effective CLR
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) being 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: “[c]omparative 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.”87
Analytical comparison
Analysis of the legal policy, provisions, their different components and relationships
inter se provides a good understanding of the law. Relating it to the Constitution
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either to identify the source of power or policy authorization gives coherent view within
the national legal system whereas relating it to international policy gives global basis
for the legal policy. The components of the legal principles, causal scheme of
intelligibility amidst them and procedure of their application are to be examined from
the angle of comparison. For example, analytical comparison of the laws of
governmental liability for torts committed by its servants would demand analysis of
the areas of liability and immunity, the basis of distinction between them,
identification of the burden holder and approaches about joint liability (cumul). The
most striking factor at this level of analysis is the focus on differences and
similarities.88 This helps in building up creative and normative interpretation, which is
the greatest contribution of CLR.89
Agreement-disagreement analysis
The methods of agreement, disagreement, joint method of both, residue and
concomitant variables as suggested by J.S. Mill help in the process of evaluation or
drawing inferences. These being essentially tools of experimental research become
relevant and handy in view of the fact that different legal systems are social
laboratories producing distinct experiences. According to Rabel, “[t]he inner
relationship between the legal systems is only discernible if in our comparative
portrayal of the institutions we take the similarities and differences together.” Being
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regarded as the most difficult part of CLR, this process is deeply affected by
peculiarities of the particular problems and their solutions in the different systems and
defies normative categorization. When a comparative study of language right in
education in SAARC (South Asian Association of Regional Cooperation) countries has
to address the issue of loss of indigenous languages in the context of globalization, the
similarities and differences and aggregation of them shall enter into the reasoning
process and form part of the CLR map. The mapping method in CLR takes into
consideration the purpose, level of comparison, units of comparison, and
differentiation, and constructs the total picture. The search for similarities and
differences many a times unearths the blind spots of our understanding of our own
law. As Dannemann points out, “[c]omparative law is particularly useful for observing
gaps in the law of one country which - almost like blind spot in our eyes - can be
difficult to detect from within.”90 Mill's canons are helpful in learning the distinctions
between the legal systems in the context of harmonization and unification of law.
Description
Description of different legal rules, doctrines, legal institutions, legal systems and
their working in practice is inevitable for CLR. It begins with depicting comparative
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picture of non-legal context in which the comparative elements prevail. Demographic,

geographic, social, historic, economic and cultural atmosphere in which they exist and
work provide a good backdrop for comparison. They hint about justifications for
similarities and differences. The non-legal context analysis shall be followed by
description of legal context. In the course of exposition of legal contexts, differential
comparison shall deal with features of the system and analyze the differences in
specific legal principle or institution. Analytical comparison is essential part of CLR. In
relation to the research questions, the relations of various components of the legal
doctrine, institution or system shall be analyzed in this process. For example, while
making a comparative study of jury system in England and France, how the
relationships amidst witnesses, lawyers, judges and other players affect the institution
of jury shall be analyzed with reference to both the systems.91 If the CLR is on legal
institutions, mechanisms or procedures, the description shall deal with the similarities
and differences in different systems. For example, in the comparison of the institution
of judiciary in US and France, the description shall cover the aspects relating to
jurisdiction, composition, powers and functions of law and actual practice in both the
systems. As in other methods of research, the result of CLR should reflect upon initial
hypothetical proposition and answer the question. Each legal system is product of
distinct social circumstances and unique culture, venturing about sweeping
statements about superiority or inferiority of any system shall be avoided unless
strong supporting reasons are behind them.92
VI 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
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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.
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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 the World Trade Organization (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 and other relations. While in the
past Asiatic law was ignored by the western scholars, there is development of interest
and inclination to study the laws of third world countries in modern times.
Transnational uniform law emerging in the field of trade-related regulations under
WTO touching upon areas of intellectual property, investment, services etc. is product
of extensive preparatory study of comparative jurisdictions systematically undertaken
at the diplomatic and private levels.93 It is said that because of emphasis on
uniformity, globalization has threatened legal diversity and thereby reduced the
importance of comparative law. While this is partially true, the heightened exchange of
ideas about alternative legal strategies across countries due to information technology
revolution has exhibited ascendance in the importance of CLR.94
VII Limitations of CLR
There are several limitations and constraints for CLR. Firstly, 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. Failure to have
effective macro-comparison and cultural immersion with functionalist study has
reduced the
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quality of CLR. The solution consists in more systematic, meticulous and deeper study.
Secondly, language in which the knowledge system of law was developed abroad
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might not be familiar to the comparer. Language barrier is a serious issue in the
matter of access to foreign law. Translation also may not provide full solution. As
Bankim Chandra Chatterji said, “[y]ou can translate a word by a word, but behind the
word is an idea, the thing which the word denotes, and this idea you cannot translate
if it does not exist among the people in whose language you are translating.”95 Even in
shared language base, crossing the linguistic border to understand the nuances of
interpretation due to distinct language practice has become essential.96 Because of
historic reasons and as a matter of convenience, the imperial and dominant position of
English language has become a reality. V.G. Curran points out, “[e]fforts to reverse or
even halt the trend to use English seem to be as ineffective as efforts to defend any
one language from foreign importations within it.”97 Relaxation of the exclusive French
language rule in France signifies the futility of posing language hurdle in access to the
knowledge of legal regulation. The translation of laws from other languages to English
or other international language for the purpose of CLR has not only avoided the pitfalls
of miscommunication but also made CLR as the bridge of mutual understanding of the
legal systems. Jaakko Husa argues for discarding the camouflage of language and go
beyond to unearth the concept which is encased in social reason.98
Thirdly, culture specific experiences cannot be generalized as universally valid.
Transplantation shall be taken with pinch of salt and not as major component of daily
diet. Inclination not to disturb home grown law has resisted apish imitation or
thoughtless importing of foreign law. In the battlefield of influence of layers of foreign
law, a high degree of eclecticism should emerge as a striking feature.99 The approach
on the part of legislators and judges that “we are servants of our own peoples, sworn
to apply our law, and not some international priests to impose upon our free and
independent citizens supra-national values that contradict them”100 speaks about the
love for autochthony. In fact, the extent to which different legal systems are open to
foreign influence is different. The resistance in the newly liberated countries after the
fall
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of the Soviet Union against unilateral imposition of western law and the basic
inclination of Canadians to be free from the influence of the British or neighbouring big
brother reflect the dominance of national culture. The transnational law explosion
experienced in Europe is primarily due to the high receptivity of international human
rights jurisprudence and accommodation of international trade.
Fourthly, choice of improper paradigm or wrong premise for comparison defeats the
efficacy of study. In contrast, coherence in analysis by scanning the relevant legal
regimes rescues the researcher. For example, comparative study of common Asian
problems relating to bigamy, conversion, hate speech, personal law reform, secularism
and the same sex marriage do become effective with a backbone of nucleus of ideas
flowing from right paradigm.101
Fifthly, mere engagement in juxtaposition statement or placement of comparative
materials fails to provide satisfactory analytical pay off. Mark Tushnet warns: “[i]
ndeed, enumeration of provisions and summaries of court decisions may sometimes
obscure more than they illuminate. Scholarship in comparative constitutional law is
perhaps too often insufficiently sensitive to national differences that generate
differences in domestic constitutional law.”102 The warning holds good in other spheres
of CLR.
Finally, difficulty may arise with regard to availability of data, primary and
secondary resources. Although information technology has partly solved the problem,
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the issue still persists. In practice, 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.
VIII Contributions and attainments
In India, at the law-making level, in judicial process, in academic research, in book
writing, and in law practitioners' works, CLR has assumed great role and made
considerable contribution. 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
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discussed by the law commission by making extensive reference to comparative law.

Institutional research conducted for the purpose has relied on comparative study as a
significant part of multi-modal research.
Specific commissions like commission on centre-state relations (Sarkaria

Commission), National Commission to review working of the Constitution (M.N.
Venkatachaliah Commission), administrative reforms commission, and committee on
criminal law reforms (Malimath 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 early
formative period of the new republic. 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 case103 judicial decisions on
constitutional matters have relied more upon the Indian material and the practice of
CLR has been found to be not that helpful especially in the context of public interest
litigation and positive right to life cases. Unparalleled judicial activism in India broke
away from the western tradition, and either kept a low key profile of CLR or gathered
slender support from CLR whenever suitable. Indian Constitution's emphatic focus on
social justice and social inclusive policy makes CLR only subordinately useful. But
when new path is to be tread in dealing with modern problem by evolving novel
concept, CLR has greatly helped by supplying sophisticated interpretive input. The
commentaries on the Constitution written by D.D. Basu and H.M. Seervai provide
useful comparative materials. Books on comparative federalism, constitutionalism and
constitutional pluralism are also pieces of comparative constitutional law.104
Comparative constitutional law engages in dialogical interpretation in constitutional
adjudication.105 For effective conducting of research in comparative constitutional law,
comparison of the socio-economic and cultural profile of each system; macro
comparison of the broad constitutional scheme; and micro comparison of specific
principle, policy or mechanism constitute systematic steps.106
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
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power, principles of natural justice, control of discretion, administrative liability,

promissory estoppels, right to information, ombudsman and control of public
undertakings. Comparative administrative law may weight the efficacy of the systems
in the matter of values (rule of law, human rights, separation of powers) served by
administrative law; compare the organization of powers and procedures; and compare
the legal redress system.107
Comparative labour law may engage in international labour policy discourse,

philosophy of labour law to save the workers from the onslaught of exploitative
capitalist practices, and efficacy in resolving disputes and bringing welfare.108
Comparative sales law, contract law, property law and torts law may address the
issues of economic dimensions of law and social security in keeping of promises.109
Comparative family law and succession law may address the issues of gender justice,
family harmony and child protection in different jurisdictions.110 Comparative criminal
law may analyze the different systems from the angle of historical basis, punishment
theories, victimology, social harmony and human rights.111
In the course of drafting legislation like Companies Act 1956, Monopalistic and
Restrictive Trade Practice Act 1969, Competition Act 2002, Consumer Protection Act
2002, and intellectual property laws, CLR has been extensively made use of. A glimpse
of law commission reports would exhibit the extent of use of CLR in legislative
drafting. The law commission report on plea bargaining has extensively referred to the
experiences of other jurisdictions on the subject.
Academic research in recent times has shown lesser use of CLR as the major
research tool.112 Along with historical, analytical and philosophical
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discussion, CLR is applied as a supplement but not as a major component of research

tool. The need for more focused study of Indian scenario, lack of access to comparative
material and the hard work involved in reference discourage the present day
researchers from plunging into comparative study. Doctoral works by Indian
researchers, now-a-days, give lesser role to CLR whereas standard legal journals still
carry research articles with strong CLR component. At the global level, CLR is still a
prominent tool. Geoffrey Wilson observed, “[l]ooking at law from a comparative point
of view has made major strides since the beginning of the century.”113
IX Conclusion
Human experiences of specific problems or issues in different contexts and
countries can be better appreciated and evaluated when they are compared. CLR
provides valuable tool for legal research as it widely spreads the canvas of community
experience. Understanding of the basic insights under different schemes fills the gap
of knowledge. As Geoffrey Samuel writes, “[t]he type of knowledge that emerges from
a comparison will equally be dependent upon the programme and model in play in
turn informed by the scheme or schemes of intelligibility adopted.”114 The danger of
reducing CLR into a juxtaposition statement with superficial contrasting shall be
avoided by making a methodic use of CLR. Comparison of social profile, cultural
immersion, macro comparison and micro comparison together bring coherence and
efficiency in comparative study. While CLR has served the growth of the Indian legal
system, the absence of strong comparative tradition and dwindling interest in CLR
amidst academic scholars and in the rungs of higher legal education are reasons of
concern. Nevertheless, globalization and universal human rights principles demand an
augmented role for systematic CLR.
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———
*
Vice Chancellor, The West Bengal National University of Juridical Sciences, Kolkata.
1Hessel E. Yntema, “Comparative Legal Research: Some Remarks on Looking Out of the Cave” 54 Michigan Law
Review 903 (1956).
2 T.S. Eliot, The Sacred Wood (1921), available at: http://www.bartleby.com/200/sw4.html (last visited on June
1, 2014).
3
Nils Jansen, “Comparative Law and Comparative Knowledge” in Mathias Reimann and Reinhard Zimmerman
(eds.), The Oxford Handbook of Comparative Law 310 (Oxford University Press, Oxford, 2006). Oxford dictionary
defines “comparison” as “consideration or estimate of similarities and differences between two people or things”,
available at: http://www.oxforddictionaries.com/definition/english/comparison (last visited on July 1, 2014).
4 Nil Jansen, supra note 3.
5
Yves Chevrel, La literature compar'e (Pres Universitaires de France, 5th edn., 2006) cited by Geoffrey Samuel,
“Comparative Law and its Methodology” in Dawn Watkins and Mandy Burton (eds.), Research Methods in Law
101 (Routlege, London, 2013).
6
Ibid.
7 While Zweigert and Kotz view that nations generally answer the needs of the legal business in the same or
similar way and hence presumptio similitudinis is appropriate, Legrand argues that comparison involves
identification of diversity in law and hence stands on presumption of difference (dans la difference). K. Zweigert
and H. Kotz, Introduction to Comparative law 40 (Oxford: Clarendon Press, 3rd edn., 1998); Pierre Legrand, Le
droit compare’ 101 (Presses Universitaires de France, 3rd edn., 2009) cited in Geoffrey Samuel, supra note 5 at
104-5.
8 Gutteridge, Zweigert and Kotz consider it only as a method whereas Legrand regards that it presents a new
perspective, allowing one to critically illuminate the legal system like critical legal studies or feminism. O. Kahn-
Freund, “Comparative Law as Academic Subject” 82 LQR 41 (1966); Pierre Legrand, “Comparative Legal Studies
and Commitment to Theory” 58 Modern Law Review 264 (1995).
9
K. Zweigert and H. Kotz, supra note 7 at 2.
10H.C. Gutteridge, Comparative Law: An Introduction to the Comparative Method of Legal Study and Research 2
(Cambridge University Press, Cambridge, 1946).
11 Roscoe Pound, “What we may expect from Comparative Law?” 22 ABAJ 56 (1936).
12
Pierre Lepaulle, “The Functions of Comparative Study of Law for Policy Purposes” 1 Am J Comp L 34 (1952).
13
O. Kahn-Freund, supra note 8 at 45.
14
Sujit Choudhry, “Migration as a new metaphor in comparative constitutional law” in Sujit Choudhry (ed.), The
Migration off Constitutional Ideas 1 (Cambridge University Press, Cambridge, 2006).
15
Merryman cited by Peter De Cruz, Comparative Law in Changing World 4 (Routlege, Cavendish, 2007).
16H. Patrick Glenn, “Comparative Legal Families and Comparative Legal Traditions” in Reimann and Zimmerman,
supra note 3 at 439.
17H. Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law 319 (Oxford University Press,
Oxford, 2000).
18
Peter De Cruz, Comparative Law in Changing World 3 (Routlege, Cavendish, 2007).
19 K. Zweigert and H. Kotz, supra note 7.
20 Elisabetta Gande, “Development of Comparative Law in Italy” in Reimann and Zimmerman, supra note 3 at 118.
21 John Bell views that CLR demonstrates that the goals of law can be achieved by different rules and institutions
in different social contexts. See John Bell, “Legal Research and Distinctiveness of Comparative Law” in Mark Van
Hoecke (ed.), Methodologies of Legal Research 158 (Hart Publishing, Oxford and Portland, 2013).
22 Rudolf von Ihering cited in K. Zweigert and H. Kotz, supra note 7.
23 Wigmore, “A New Way of Teaching Comparative Law” 6 Journal of the Society of Public Teachers of Law
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(1926) cited in Rahamatullah Khan, An Introduction to the Study of Comparative Law 4 (Indian Law Institute,
New Delhi and N.M. Tripathi, Bombay 1971).
24 John Bell, supra note 21 at 167.
25See for discussion, James Gordley, “Comparative Law and Legal History” in Reimann and Zimmerman, supra
note 3 at 762.
26
Annelise Riles, “Comparative Law and Socio-Legal Studies” in Reimann and Zimmerman, supra note 3 at 809.
27Florian Faust, “Comparative Law and Economic Analysis of Law” in Reimann and Zimmerman, supra note 3 at
856.
28P. Legrand, Le droit compare (Presses Universistaires de France, Paris, 3rd edn., 2009) and in contrast,
Favaraque-Cosson, “Development of Comparative Law in France” in Reimann and Zimmerman, supra note 3 at 61.
29Heidmann, Epistemologie atpratique de la comparaison differentelle 146 (2006) cited by Geoffrey Samuel,
“Does One Need an Understanding of Methodology in Law Before One Can Understand Methodology in
Comparative Law” in Mark Van Hoecke (ed.), Methodologies of Legal Research 178-180 (Hart Publishing, Oxford
and Portland, 2013).
30 Watson 1974 cited in Peter De Cruz, supra note 18 at 4.
31
Charles Donahue, “Comparative Law before the Code Napoleon” in Reimann and Zimmermansupra note 3 at 4-
5.
32
Id. at 6.
33 Id. at 15.
34Id. at 31; Fauvraque-Cosson, “Development of Comparative Law in France” in Reimann and Zimmerman, supra
note 3 at 39-41.
35
Ingeborg Schwenzer, “Development of Comparative Law in Germany, Switzerland and Austria” in Reimann and
Zimmerman, supra note 3 at 78.
36
Elisabetta Grande, “Development of Comparative Law in Italy” in Reimann and Zimmerman, supra note 3 at
109.
37
Id. at 118.
38John W Cairns, “Development of Comparative Law in Britain” in Reimann and Zimmerman, supra note 3 at 131-
137.
39 Id. at 142-3.
40 Id. at 146.
41 Canadian Charter of Rights and Freedoms 1982, s. 1; Constitution of the Republic of South Africa, s. 39(1).
42
Soobramoney v. Minister of Health, Kwazul Natal, 1997 (12) BCLR 1696 (CC).
43 Printz v. United States, 521 US 898 (1997).

44 Knight v. Florida, 528 US 990 (1990); Foster v. Florida, 537 US 990 (2002).
45 Ropert v. Simmons, 543 US 551 (2005).
46 See for discussion, Sujit Choudhry, supra note 14.
47
See for discussion, P. Isbwara Bhat, Law and Social Transformation (Eastern Book Co., Lucknow, 2009).
48Upendra Baxi, “Modelling ‘Optimal’ Constitutional Design for Government Structures: Some Debutant Remarks”
in Sunil Khilnani, Vikram Raghavan et.al. (eds.), Comparative Constitutionalism in South Asia 23 (Oxford
University Press, New Delhi, 2013).
49State of W.B. v. Anwar Ali Sarkar, (1952) 1 SCC 1 : AIR 1952 SC 75; State of W.B. v. Subodh Gopal Bose, AIR
1954 SC 92; Saghir Ahmad v. State of U.P., AIR 1954 SC 728; Kharak Singh v. State of U.P., AIR 1963 SC 1295;
Gobind v. State of M.P., (1975) 2 SCC 148; A.K. Gopalan v. State of Madras, 1950 SCC 228 : AIR 1950 SC 27;
Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597; Bachan Singh v. State of Punjab, (1980)
2 SCC 684 : AIR 1980 SC 898; Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461.
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Also see, P.K. Tripathi, Spotlights on Constitutional Interpretation 245-247 (NM Tripathi, Bombay, 1972).
50See for extensive discussion, Sujit Choudhry, “How to Do Comparative Constitutional Law in India: Naz
Foundation, Same Sex Rights, and Dialogical Interpretation” in Sunil Khilnani, supra note 48 at 45.
51 Myers S. McDougal, “The Comparative Study of Law for Policy Purposes” 1 Am. J. Comp. L 34 (1952).
52A.T. von Mehren, “Roscoe Pound and Comparative Law” 13 Am. J of Comp. L 515 (1964); John Bell, supra note
21 at 158.
53 Rahamatullah Khan, supra note 23 at 6.
54 Ralf Michaels, “The Functional Method of Comparative Law” in Reimann and Zimmerman, supra note 3 at 341-
2.
55Geoffrey Wilson, “Comparative Legal Scholarship” in Mike McConville and Wing Hong Chui (eds.), Research
Methods for Law 87 (Edinburgh University Press, 2007).
56 Ibid.
57 Geoffrey Samuel, supra note 28 at 187. Also see, A Riles, “Comparative Law and Socio-Legal Studies” in
Reimann and Zimmermann, supra note 3 at 801.
58Grehard Dannemann, “Comparative Law: Study of Similarities or Differences?” in Reimann and Zimmerman,
supra note 3 at 403. Also see, Geoffrey Wilson, supra note 55.
59P.M. Baxi, “Legal research and Law Reform” in S.K. Verma and Afzal Wani (eds.), Legal Research and
Methodology (Indian Law Institute, New Delhi, 2nd edn., 2001).
60 E. Lambert and J.H. Wigmore, “An International Congress of Comparative Law” 23 Illinois L Rev. 665 (1930).
61
Gerhard Dannemann, supra note 58 at 404.
62 Horatia Muir Watt, “Globalization and Comparative Law” in Reimann and Zimmerman, supra note 3 at 601.
63 Geoffrey Samuel, supra note 5 at 110.
64
P. Isbwara Bhat and Samiul Hasan, “Legal Environment for TSO Governance: A Comparative Overview of Six
Asian Countries” in Samiul Hasan and Jenny Onix (eds.), Comparative Third Sector Governance in Asia 39
(Springer, New York, 2008).
65 P. Isbwara Bhat, “Constitutional Pluralism in response to Multi-cultural Reality: A Comparative reflection on the
Indian and Japanese Approaches to Ethnic Minorities” in P. Isbwara Bhat, Constitutionalism and Constitutional
Pluralism 297 (Lexis Nexis, New Delhi, 2013).
66“S ab T” (similarity between a and b in relation to T) and “D ab T” (difference between a and b in relation to
T) arise from such analysis according to Nils Jansen, supra note 3.
68
H.C. Gutteridge, Comparative Law 8-9 (1946); K. Zweigert and H. Kotz, supra note 7 at 40.
69Marc Ancel cited in Grehard Dannemann, supra note 58 at 389; P. Legrand, “The Same and the Different” in P.
Legrand and Munday, Comparative Legal Studies: Traditions and Transitions 240 (Cambridge University Press,
2003).
70Pierre Legrand, “The Impossibility of ‘Legal Transplants'” Maastricbt Journal of European and Comparative Law
120 (1997) cited by Geoffrey Samuel, supra note 5 at 107.
71 “To accord difference priority is the only way for comparative law to take cognizance of what is the case”.
Pierre Legrand, in Legrand and Munday, supra note 69 at 263.
72Ran Hirschl, “On the blurred methodological matrix of comparative constitutional law” in Sujit Choudhry, supra
note 14 at 48; if two or more instances of the phenomenon under investigation have only one circumstance in
common, the circumstance in which alone all the instances agree, is the cause (or effect) of the given
phenomenon. J.S. Mill, A System of Logic (1843).
73
Id. at 51-52.
74
Id. at 55.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
75 Id. at 57.
76
CLR enters into socio-legal research or vice versa in such events.
77 Ralf Michaels, “The Functional Method of Comparative Law” in Reimann and Zimmerman, supra note 3 at 342.
78 Id. at 363.
79
Mark Tushnet, “Some Reflections on Method in Comparative Constitutional Law” in Sujit Choudhry, supra note
14 at 72.
80Jaakko Husa, “Comparative Law, Legal Linguistics and Methodology of Legal Doctrine” in Mark Van Hoecke,
supra note 28 at 214.
81 V.G. Curran, “Cultural Immersion, Difference and Categories in US Comparative Law” 46 AJCL 43 (1998).
82
Roger Cotterrell, “Comparative Law and Legal Culture” in Reimann and Zimmerman, supra note 3 at 711.
83 Pierre Legrand, Fragments on Law-as-Culture (1999) 11 cited by R. Cotterrell, supra note 82.
85
Pierre Legrand, “European Legal Systems are Not Converging” 45 ICLQ 60 (1996).
87 Werner Menski, Comparative Law in Global Context 66 (Cambridge University Press, Cambridge, 2006).
88
Geoffrey Samuel, supra note 5 at 108.
90 Grehard Dannemann, supra note 58 at 416.
91
Geoffrey Samuel, supra note 5 at 108.
92For example, Henry Maine's statement that success of Roman law is the measure of failure of Hindu law is not
supported by convincing reasons.
93 Horatia Muir Watt, “Globalization and Comparative Law” in Reimann and Zimmerman, supra note 3 at 606.
94
Id. at 587.
95
Cited in T.N. Madan, “Secularism in its place” in Rajeev Bhargava (ed.) Secularism and its Critics 308 (Oxford
University Press, New Delhi, 1998).
96 Id. at 604.
97
V.G. Curran, “Comparative Law and Language” in Reimann and Zimmerman, supra note 3 at 694.
98 Jaakko Husa, supra note 80 at 217.
99
Jan Kleinheisterkamp, “Comparative Law in Latin America” in Reimann and Zimmerman, supra note 3 at 293.
100
Antonin Scalia, “Commentary” 40 St Louis University LJ 1122 (1996).
101 Deepika Udagama, “The Democratic State and Religious Pluralism: Comparative Constitutionalism and
Constitutional Experience of Sri Lanka”; Gary Jacobson and Shylashri Shankar, “Constitutional Borrowing in South
Asia: India, Sri Lanka, and Secular Constitutional Identity”; John H Mansfield, “Religious Freedom in India and
Pakistan: The Matter of Conversion”; Mathew J Nelson, “Inheritance Unbound: The Politics of Personal Law
Reform in Pakistan and India” in Sunil Khilnani, supra note 48.
102 Mark Tushnet, “Comparative Constitutional Law” in Reimann and Zimmerman, supra note 3 at 1225-1256.
103
(1973) 4 SCC 225 : AIR 1973 SC 1461.
104
D.D. Basu, Comparative Federalism (Lexis Nexis, 2007); P. Isbwara Bhat, Constitutionalism and Constitutional
Pluralism (Lexis Nexis, New Delhi, 2013); Sunil Khilnani, supra note 48.
105 Supra note 14 at 22.
106
See for the application of these steps, supra note 65.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
107 John S. Bell, “Comparative Administrative Law” in Reimann and Zimmerman, supra note 3 at 1259.
108 Mathew W. Finkin, “Comparative Labour Law” in Reimann and Zimmerman, supra note 3 at 1131.
109
E. Allan Earnsworth, “Comparative Contract Law”; Gerhard Wagner, “Comparative Tort Law”; Sien Van Erp,
“Comparative Property Law”; Peter Huber, “Comparative Sales Law” in Reimann and Zimmerman, supra note 3.
110
Harry D. Krause, “Comparative Family Law” in Reimann and Zimmerman, supra note 3 at 1099; Maurius J De
Waal, “Comparative Succession Law” in Reimann and Zimmerman, supra note 3 at 1071; Brenda Cossman,
“Migrating marriage and comparative constitutionalism” in Sujit Choudhry, supra note 14 at 209
111 Markus Dirk Dubber, “Comparative Criminal Law” in Reimann and Zimmerman, supra note 3 at 1287.
112
Geoffrey Wilson views that national legal system still dominates the agenda of legal scholarsand law school
curriculum. Geoffrey Wilson, supra note 55.
113 Id. at 100.
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57 JILI (2015) 147

Comparative Method of Legal Research: Nature, Process and Potentiality

COMPARATIVE METHOD OF LEGAL RESEARCH: NATURE, PROCESS AND POTENTIALITY

II Meaning and features

dissimilarity between different matters of fact.”3 Search for common or dissimilar

presumption in favour of similarity or with that of difference is a debatable point

CLR is a systematic exposition of the rules, institutions and procedures or their

CLR operates, according to Wigmore, in three forms: comparative nomo scopy -

III History and development of comparative legal research

interpreting a constitution.”43 The minority view of Stephen Breyer J44 that

foreign source is relevant, informative and helpful in guiding the process of

research, study, and recommendations, which constitute massive literature, gives a

IV Aims and purposes

Thirdly, CLR enables promotion of understating between different communities and

V The method and steps of comparative legal research

objectively available yardstick in most of the circumstances, but it descends from a

Emphasis in comparison: Similarity or difference?

accommodate diversity of features amidst systems having at least some common

The purpose of comparative study guides the selection of jurisdictions for

of state's recognition of religion but exhibit similar tendency of popular support to

As law is embedded in culture, understanding of it will be effective only if the

or on description. Its task is analysis and explanation rather than evaluation. It is

practically exist, their mutually complementary character shall be perceived.

Paradigms for comparison

picture of non-legal context in which the comparative elements prevail. Demographic,

VI Scope and potentiality

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

discussed by the law commission by making extensive reference to comparative law.

Specific commissions like commission on centre-state relations (Sarkaria

power, principles of natural justice, control of discretion, administrative liability,

Comparative labour law may engage in international labour policy discourse,

discussion, CLR is applied as a supplement but not as a major component of research

43 Printz v. United States, 521 US 898 (1997).

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