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ISSN No: 2581 - 4230
VOLUME 9, ISSUE 4, April. -2023
ROLE AND SIGNIFICANCE OF COMPARATIVE PUBLIC LAW
Somesh Nathrani,
Sachin Tripathi
Symbiosis Law School Nagpur Affiliated to Symbiosis
International (Deemed) University, Pune (India)
Corresponding Author: [email protected]

Abstract
In the modern era of internationalism, democratization and economic globalization the
comparative public law received considerable importance and acceptance. The relations
between individuals and the state are studied under the domain of public law. Therefore, the
domain of law intensively focused on comparing the individual state relationships of various
countries with the individual state relationships of the states of India is known as comparative
public law. India is among those country which legal system has changed several times since it
acquired a wisdom of improvisational legislation with a more individualistic approach. The in-
depth knowledge of comparative public law enables to reader of this article to understand the
subject particularly legal system in the wider socio-political. Presently, the significance of
comparative public law has received the great interest of researchers across the globe due to the
gradual raise in globalization where legal things, authority structures including the legal
concepts migrate. Therefore, the present research article is primary attempt towards to analyze
the role and significance of comparative public law. Further, this article provides insight into the
key problems, methods involve, shortcomings associated with the comparative public law.

Keywords: Public Law; Comparative Interest; Comparative Systems; Individual-state Relations

1. Introduction
Comparison is the logical and inductive approach which assist to empirically categorize the
advantages and disadvantages of any legal system links to others or own legal system. It is a
general tendency of people for betterment of society and nation, they use comparison approach
in their daily deals such as buying groceries, facilities, participation in property deals, voting to
the efficient leader in election. Simply, the comparative analysis is a term which assist to people
or government to arrive at a particular decision. The comparative analysis of legal system of
various countries/states is called as comparative law. In present, due to rapid globalization and
liberalization responsible for the flourishing in the trade relations of different country, which
results into the establishment of healthy relationships among the several sectors of many
nations. That why comparative public law becomes the crucial term in present time. The
character of comparative public law is very apparent in the constitution of India. The
development and drafting process of constitution of India is based on comparative study of the
constitutions of several nations such as USA, UK, Canada, Ireland, Australia etc.
The significance of comparative public law is the formation of acts and new codes in parliament
produces serval hypothetical and real-world questions. Notwithstanding the working of new
laws and codes, the understanding of these laws gives clear vision which are as follows,
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NOVATEUR PUBLICATIONS
JournalNX- A Multidisciplinary Peer Reviewed Journal
ISSN No: 2581 - 4230
VOLUME 9, ISSUE 4, April. -2023
❖ In the evolution process of the civil law codification, use comparison approach as
basis.
❖ Comparison approach must be practical and in position to solve real world
problem.
❖ Comparison approach must cover the evaluation of financial and legal-system of
respective nation.

2. Basis of the Comparative Public Law

The basis of contemporary comparative public law was first time coined into the Latin language
book entitled as New Methods of Studying and Teaching Jurisprudence, which authored by
Gottfried Wilhelm Leibniz in 1667.
Similarly, the comparative public law in United States of America was outcome of the feeling of
the legal researchers stressed in Republic of Germany during the world war.
But presently the key functioning of States is based on the welfare of society and it is observed
from the approaches of the government are shifting.
The forthcoming future of comparative public law be subject to the worldwide slant of
permissions of the various classes involve in the legal system.
Some evidences of the basis of comparative public law found into the middle of the 19th century.
Also, some evidences indicates that the ancient institute of thought was not support to the
expansion or education of comparative public law.
Further, the period of systematization also did not significantly improve the situation. But some
initiatives were ended in Federal Republic of Germany by Feuerbach, Gans, and Thibaut.
Some milestones in the developments of Comparative Public Law are listed below,
❖ The lawful evaluation designated to the education of foreign law was commenced
in 1829 by Mittermaier and Zachariah.
❖ In France, the college named as de France started the education of comparative
public law around the 1832.
❖ Around the 1846, the university of Paris also initiated the education of
comparative criminal law.
In these developments, the comparison of governments becomes the focus point which
envisioned mainly to please brainy interest and partially to encourage change. Georg Jellinek,
the father of a theory of the universalism of human rights develops this theory using comparative
methodology. In France, Edouard Lambert started the civil law-based comparative law around
the 1921. Additionally, the Lambert's clarification of the USA jurisprudence regarding the labor,
which considered as segment of society for the progress of foreign constitutional law as a key
part of the comparative law system. As an outcome of legal positivism, the comparative approach
becomes the real-world requirements of public law modification and constitution development.
Similarly, the presence of a comparative inquisitiveness in theoretical constitutional law, the
contemporary comparative law instigated as the output of spending energy and time by the
private-law experts. Some concepts of comparative public law display the thoughts and thoughts
of private-law and it is observed that constitutional law was repeatedly neglect the comparative
education. The problems in finding of universal elements in constitutional-law results into the
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NOVATEUR PUBLICATIONS
JournalNX- A Multidisciplinary Peer Reviewed Journal
ISSN No: 2581 - 4230
VOLUME 9, ISSUE 4, April. -2023
small outline of constitutional-law in comparative public law. After the second world war,
comparative constitutional-law recognized as a distinct academic subject.

3. Relevance of Comparative Public Law

Comparative-law is a tool of continuous learning and creation of knowledge. The key objective
of the comparative public law is to produce capacity of suppling progressive knowledge and skill
that will empower them to:
➢ Advise to the public sector on modern public law issues.
➢ Study domestic legal instruments according to new policies.
➢ Start research and teach on modern legal issues related to public law.
➢ Contribute in coordination of law.
➢ Understanding in own legal system.
Due to the rapid liberalization and privatization results in the increasing globalization,
traditional power structures are reconstructing and continuously regimes are becoming
increasingly powerful.
Presently, comparative public law is arising as a separate academic subject and research area,
which also comprises the education of legal organizations in that country. Many education areas
are evolved as distinct domain of comparative law, such as comparative constitutional law,
comparative organizational law, comparative public law, comparative commercial law and
comparative criminal law.
Therefore, some key determinations regarding the of comparative public law are as follows,
✓ To accomplish in-depth information of law.
✓ To make law system flawless.
✓ Potential to contribute in unification of law systems.
Hence, the comparative public law is also a very crucial area of study in public administration.
Further, the study of comparative public law helps to improve administrative systems by making
them more useful and efficient for public.

4. Methods Involve in Comparative Public Law

4.1 Law-in-Context Method
Majority of the legal jurists are agreed on the fact that the comparative exploration cannot be
meticulous to unadulterated black-letter comparison of the legal perceptions, directions or
organizations. The laws-in-context is a way which cannot be isolated from other approaches, as
it carries approximately traces of logical approaches which supported to the more intellectual
and intangible level, somewhat receiving disengaged from the real world. But it is not lawful
ways of assessments. Here is a huge scope of research in the laws-in-context approach. Others
uses the data provided by the various researches such as anthropological, historical, sociological,
psychological etc. The outcome of such projects be subject to the emphasis of the investigation
and the acquaintance accessible with the participation of investigators, where the picking the
category and scope of law-in-context approach matters.

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NOVATEUR PUBLICATIONS
JournalNX- A Multidisciplinary Peer Reviewed Journal
ISSN No: 2581 - 4230
VOLUME 9, ISSUE 4, April. -2023
4.2 Common-Core Method
This method is principally grounded on the practical system and to roughly extent to collective
with the laws-in-context system. The chief purpose of the common-core approach is that to
exploration for resemblances and variances between the several lawful schemes in belief of the
question, to what degree coordination is conceivable between the associated legal systems.

4.3 Functional Method

In the functional method, comparability of primary rules is compared, but it focused on to the
comparison of solutions to real-world difficulties with contradictory interests. It is observed that
here are numerous general and social insolences to specific situations such as loving to offspring,
respecting properties rights, rewarding in one way or other ways to the compensations triggered
by one’s unlawful behavior etc. Thus, the real-world explanations to the glitches of comparable
nature in that domain, in dissimilar lawful systems will meet the legal system used to reach the
desired results.

4.4 Historical Method

In every traditional legal policy, almost all books encompass the historical chapter associated to
the basis of few legal ideas, lawful construction, legal rules etc. A past study likewise includes
sociological, political, psychological, economic or other context data. Past assessment method
effectively clarifies the basis and cause for the present-day law in a specific civilization and it
also exposes that analogous regulations and methods to the law which are originate in a specific
legal system were also existed in the past 1.

5. Role & Function of Comparative Public Law

As discussed earlier, the role of comparative law is to determine the principle which is common
to all civilized systems of law. Broadly, the role of Comparative Public Law divided under two
categories 2,
1. Scientific
2. Practical
The scientific approach adopted to discover origin, development and destruction of certain legal
institutions. This terminology known as comparative legal history.
In the practical approach adopted for creating an international law common for the same
standard of civilization.
Further, comparative public law can be divided into three categories on the basis of function –
1. Universalist Approach: In this approach, the finding of principles common to all systems of
law is key function.
2. Informative Approach: In this approach, knowing the principles of international law is key
function.

1
https://www.legalserviceindia.com/legal/article-5063-64-comparative-law-conceptual-study.html
2
https://www.lawyersclubindia.com/articles/comparative-public-law-1406068.asp
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NOVATEUR PUBLICATIONS
JournalNX- A Multidisciplinary Peer Reviewed Journal
ISSN No: 2581 - 4230
VOLUME 9, ISSUE 4, April. -2023
This terminology known as 'Descriptive Comparative Law'. This approach provides comparative
statements and not results into the directed solution of any problem.
3. Practical Approach: This approach enables legislation to improve they’re of laws. This
terminology known as 'Applied Comparative Law'.
Even today the comparative public law is in development stage. The key objectives of this branch
is to assist,
o The legislature processes.
o Knowing one's own legal systems.
o Practicing lawyers.
o To improve mechanism of the courts.
o To improve foreign trade and economic relations.

6. Importance of Comparative Public Law

6.1 Industrial and Technological Development
The importance of the research area of comparative public law attaining wide interest due to the
rapid industrialization, globalization and liberalization. But still this domain of law is in its
budding stage. Due to these rapid developments, every country has interdependence on other
countries in the world. In the light of above discussion, it is observed that many countries faced
similar problem related to the social, economic and legal type. Here is the role of comparative
public law starts by primarily investigation of the stance taken by other authorities with respect
to the matter. To resolve the issues of nations by comparative approach, strong studies of laws
are very much necessary.

6.2 Understanding of Laws

Comparative public law provide assistance to judiciary system to understand their function
effectively by following approaches-

Necessity to understand specific characteristics of law?

If the legal system of nation come across a condition where there is a need to study the law, but
the purpose of the assembly is blur, the bench can depend on on the comparative analysis of laws
in diverse authorities to receive an understanding and which decision will be advantageous for
peoples. In such cases, it applies the similar explanation or change it by adding appropriate
things as it will be useful in present situation including the needs of future and society.

When a shortcoming associated with the current law?

It is assumption that all the nations/states across the globe have comparatively analogous type
of problem linking to public law and hence the study of comparative law in diverse country is
key solution for them, which found supportive in resolving the problem met in various
authorities.
If the condition created, where the legal system of the country unable to address legal-problems,
the legal system of that country have option of the comparative public law study for deciding
which slant is appropriate and suitable for the nation/states.
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JournalNX- A Multidisciplinary Peer Reviewed Journal
ISSN No: 2581 - 4230
VOLUME 9, ISSUE 4, April. -2023
Numerous occasions available in the Indian judiciary, in which the comparative approach was
used as the stand of diverse authorities for a specific legal-problem, to come at a verdict.
For example: -
1. The judgement of Justice K S Puttaswamy Vs Government of India emphasized on the situation
that the topic of proportionality for the equilibrium rights and competing interests, the European
law was used to resolve the issue. In addition to that complete section with the dominancy of
view is keen to comparative public law study for the allowing the right of privacy as an essential
aspect in diverse legal system across the globe.

6.3 Understanding the Different Legal Systems in World

The historic advances in any country plays vital part in the advancement of public-law of that
country, the type of issues that nation/states they faced. In such situations, it is very importance
what kind of tactic they used to resolve the issues and find out the effective solution.
Thoughtful study of the developments in past of that nation’s legal system, the entry of authority
with dominance in the legal-systems assist to analyze how commonly the fairness and other
things are released with an ethical expectation, social backgrounds, experiences in past,
historical knowledge and financial deliberations are keeping in mind for the said society’s
behavioral approach to the issue of peoples in that country.

6.4 Adopting the Best Practices

The comparative public-law motivates to adopt the best practices by providing the elucidation
of the perceptions, situation, and substitutes to other societies for make safe and improves the
democratic values. The adoption of comparative public law helps in identifying and its
implementation as best practices in the legal system across the globe with necessary legal
framework. This is the need of modern era.
The often use of recognized best practices in legal framework results in to framing suitable
regulations and strategies to handle the ongoing problems or any difficulty that might be appears
over the period of time or in future. Such appropriate arrangements in legal system of nation are
very necessary to make legal system effective for the peoples of that nation or state.

6.5 To Create Harmony in International World Order

The key significance of comparative public law is that it enables to understand various countries
in the light to reduce the world’s tension. In that context, comparative public law is very useful
for all country currently facing geo-political tensions. It is also useful in solving the difficulties
and issues associated with the public-laws of various nations or states, which are at similar point
of development. It is additionally helpful in resolving the figures of problems present between
various country. It further useful in the creation of coordination of legal system and to fetch
standardization with less variances.

7. Comparative Public Law as Academic Discipline

The changeover from comparative analysis of various government and their legal system in the
context of comparative constitutional law as separate research area indicates that the attention
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NOVATEUR PUBLICATIONS
JournalNX- A Multidisciplinary Peer Reviewed Journal
ISSN No: 2581 - 4230
VOLUME 9, ISSUE 4, April. -2023
in that area firstly demonstrated to be principally conceptual. The benefit of comparative public
law as academic discipline strengthens to the liberal constitutionalism compared to
totalitarianism. In that view, the expansion of this topic results into the displeasure as compared
to the usual positivistic method in legal system to reduce the efforts and censored out a domain
or sub-domain in that legal system. Comparison is a term which envisioned to underline
hypothetical inclinations and the objective of the comparison process becomes the basic
government practice as the origin of laws and importantly in formation of public law.
In light of above discussion, it is observed that in a worldwide background in the view point of
nation and interrelationship very useful to the dispersal of many strong and novel reforms of
constitutionalism. These kinds of inclinations produce new requirements from both system that
is legal system and government, which linked in certain point with constitution lettering for the
extraction of worldwide collaboration. It is also observed that the protection to the comparative
public law in legal eco-system as a distinct research area or domain with complete practical
significance needs constitutional reorganizations and clearances aligned to the comparison
process. After the second world war, Europe’s comparative constitutional law was in force.
Similarly, the foreign constitutional system or legal system was most probably used to study the
soviet legal system including the study of Western legal system.
The comparative public law was studied and analyze as foreign systems, through a substantial
theoretical aspect. After the second world war period, worldwide human-rights revolution was
start with different expectations including the reorganization of state or formation and
democratization of states, jointly with snowballing judicialization of legal system constitutional-
law. The awareness about the comparative approach gradually increases supplementarily and
motivate to enhance fortification to the fundamental rights which allotted by the United States
apex court preliminary implemented around the commencement of the 1940s 3.

8. Weaknesses of Comparative Public Law

Presently, the comparative law as a separate specialization of law is receiving huge interest from
most of the legal systems across the globe.
But, critical analysis in all those things indicates some serious shortcoming associated with
comparative public law are as follows,
• Comparative public law not flourish or develop due to the hinderance of existing rigid legal
system.
• It is very difficult to compare the legal system of two nations. The difficulty is highlighted by
many reasons such as non-availability of material, language, lack of aptitude etc.
• The collection of information of laws and legal institutions of different states need special kind
of ability.
• The approach of comparative study of lawyers and academics may vary from nation to nation
and extraction of conclusions becomes very difficult.

3
P. Ishwara Bhat, Comparative Method of Legal Research: Nature, Process and Potentiality, 57 J. INDIAN. LAW. INST.,
145, 147-52 (2015).
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JournalNX- A Multidisciplinary Peer Reviewed Journal
ISSN No: 2581 - 4230
VOLUME 9, ISSUE 4, April. -2023
• Finally, it is very important aspect of comparative public law is that incomparable cannot be
compared. It is observed that the legal systems one country, one community, one culture may
be completely parallel to each other but unacceptable to another.

9. Conclusions
In summary, following things are concluded about the study of comparative public law,
• Comparative public law getting wide interest due to the rapid industrialization, globalization
and liberalization. This domain of law is in its budding stage.
• Comparative law is an important tool of continuous learning and creation of knowledge,
which results into the suppling progressive knowledge and skill that will empower legal
system.
• Comparative Public Law found significant role in the globalization and development of
technology, interpretation of laws, understanding the different legal systems in world,
adopting the best practices and to create harmony in international world order.
• Currently, the comparative public law emerging as separate academic discipline.

Acknowledgements
Authors are very thankful the Director, Symbiosis Law School, Nagpur 440008, India for
providing necessary academic help and resource in writing this research article.

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