CENTRE FOR POST GRADUATE LEGAL STUDIES AND SOCIO LEGAL

RESEARCH, SCHOOL OF LAW, ITM UNIVERSITY GWALIOR M.P.

2023-24

MASTER OF LAWS

In

CONSTITUTION AND ADMINISTRATIVE LAW

PROJECT SUBMISSION

OF

COMPARATIVE PUBLIC LAW

ON

MEANING AND SCOPE OF COMPARATIVE LAW

Submitted To: Submitted By:

Dr. Vinod Kumar Shrotriya Saumya Jain
LLMN1SL23031
Contents:-

 INTRODUCTION
 THE NEED FOR THE STUDY OF COMPARATIVE PUBLIC LAW.

 FUNCTIONS, PURPOSES AND USES OF COMPARATIVE LAW

 VALUE OF COMPARATIVE LAW

 CONCLUSION

 BIBLOGRAPHY

 WEBLIOGRAPHY

MEANING AND SCOPE OF COMPARATIVE PUBLIC LAW

INTRODUCTION
Comparative Law is that branch which deals with the study of laws of different
nations. It is the study of differences and similarities between the law of different
countries. More specifically, it involves study of the different legal “systems” (or
“families”) in existence in the world, including the common law, the civil law,
socialist law, Jewish Law, Islamic law, Hindu law, and Chinese law. It includes the
description and analysis of foreign legal systems, even where no explicit
comparison is undertaken. The importance of comparative law has increased
enormously in the present age of internationalism, economic globalization and
democratization. The use of comparative law in working out new Acts of
Parliament and new laws assumes importance because of globalisation and the
necessity to be an accepted part of the comity of nations. A study of the various
ways in which different countries are meeting these problems, and particularly of
the ways of enforcing the responsibility of the state and its officials,” cannot fail
to be use.

The origins of modern comparative law can be traced back to 18 th century Europe,
although, prior to that, legal scholars had always practiced comparative
methodologies. Montesquieu is generally regarded as an early founding figure of
comparative law. His comparative approach is obvious in the following excerpt
from Chapter III of Book I of his masterpiece, De l’esprit des lois:

~ “The Political and civil laws of each nation should be adapted in such a
manner to the whom they are framed that it should be a great chance if those of
one nation suit another. “

In foreign law you can find anything you want’

(American Chief Justice Roberts on ‘Comparative law’)

They should be in relation to the nature and principle of each government:
whether they form it, as may be said of politic laws; or whether they support it, as
in the case of civil institutions.

They should be in relation to the climate of each country, to the quality of its soil,
to its situation and extent, to the principal occupation of the natives, whether
husbandmen, huntsmen, or shepherds: they should have relation to the degree of
liberty which the constitution will bear; to the religion of the inhabitants, to their
inclinations, riches, numbers, commerce, manners, and customs”.

The modern founding figure of comparative and anthropological

jurisprudence was Sir Henry Maine, a British jurist and legal historian. In his 1861
work ‘Ancient Law: Its Connection with the Early History of Society, and Its
Relation to Modern Ideas’, he set out his views on the development of legal
institutions in primitive societies and engaged in a comparative discussion of
Eastern and Western legal traditions. This work placed comparative law in its
historical context and was widely read and influential.

THE NEED FOR THE STUDY OF COMPARATIVE PUBLIC LAW:-

Every lawyer truly devoted to his profession, takes pleasure in comparing the
ways in which the same legal problem is dealt with in different legal systems.
Comparative law is an instrument of learning and knowledge. The general
objective of the study of comparative public law is to build capacity of the legal
profession by providing advanced knowledge and skill that will enable them to:

 Advise the public sector on contemporary public law issues.

 Analyse and execute domestic legal instruments according to new policies.
 Conduct research and teach on contemporary legal issues related to public
law meet the policy requirements of the federal, regional and local
governments.
 Assist in harmonization of law.
 Contributing to one’s own legal system (understanding it better, including
the resistance of its traditions, improving it, using it as a means for
interpreting the constitution).

Public law refers to an act that applies to the public at large, as opposed to
a private law that concerns private individual rights, duties, and liabilities.
Public law is that area of constitutional, administrative, criminal, and
International Law that focuses on the organization of the government, the
relations between the state and its citizens, the responsibilities of
government officials, and the relations between sister states. It is concerned
with political matters, including the powers, rights, capacities, and duties of
various levels of government and government officials to achieve good
governance.
While Public Law was originally conceived as those areas of law
dealing with State power and control over its exercise, the increasing use of
public law in private law areas such as family law has leaned towards a
blurring of boundaries between to two. With liberalization and privatization
coming in with increasing globalization, traditional power structures are
being reconstructed and Regulatory regimes are becoming increasingly
powerful.
Comparative civil law studies, for instance, show how the law of
private relations is organised, interpreted and used in different systems or
countries.

Several disciplines have developed as separate branches of comparative law

including comparative constitutional law, comparative administrative law,
comparative civil law (in the sense of the law of torts, delicts, contracts and
obligations), comparative commercial law (in the sense of business,
organisations and trade), and comparative criminal law. Studies of these
specific areas may be viewed as micro- or macro-comparative legal analysis,
i.e. detailedcomparisons of two countries, or broad-ranging studies of several
countries.

The purposes of comparative law are:

 To attain a deeper knowledge of the legal systems in effect.
 To perfect the legal systems in effect.
 Possibly, to contribute to a unification of legal systems.
A study of comparative law is also a very significant area of study in Public
Administration as it helps in understanding administrative setups and their
functioning in various settings and societies/countries and what works and why it
works. Also, it helps improve administrative systems making them more efficient
together with helping in adding and improvising the already existing
literature/theories of Public Administration thus leading to a strong and practical
theory of the subject with the help of practical experiments and analysis.

The conceptions of acts of state, of political representation, of consent, of

social contract, of grants, of separation of powers, of acquired rights, of the
protection of rights of individuals--- these are just a few examples of topics
requiring the study of the old and new law of different countries.

The use of comparative law for working out new legal rules has a long tradition.
Studying foreign law had theoretical as well as practical importance from the time
when the law lost its international character and became a set of national rules.
The topic had a particular interest from the point of view of legislative work. The
first chairs at Universities for comparing legislation were established in the
nineteenth century”.

FUNCTIONS, PURPOSES AND USES OF COMPARATIVE

LAW:-
As brought out earlier, the function of comparative law is to acertain the
principles common civilised systems of law. As per Lambert, there are two
functions one scientific and the other Practical. The scientific function aims at
discovering by comparison the origin, development and extinction of certain
legal institutions. This can be termed as comparative legal history. The
practical part aims at creating an international law common to all such
communities as have attained the same standard of civilisation.

Broadly speaking, the functions of comparative law can be divided into three

parts :-

 Universalist Approach: It implies finding of principles common to all

systems of law.
 Informative Approach: It implies knowing the principles of international
law. It is also termed as ‘Descriptive Comparative Law’. It merely gives
comparative or tabular statements and is not directed to any solution of any
problem.
 Practical Approach: It facilitates legislation and practical improvement of
law. It is also called ‘Applied Comparative Law’ and it enables a philosopher
to construct theories of law or a historian to trace the origins and
development of legal concepts and institutions.

Comparative law is actually in the stage of development. Today its recognition as

a distinct branch of study is indisputable. There are many objects of this branch of
study and it is an aid to:-

 The legislature.
 Understanding one’s own legal systems.
 The practicing lawyers.
 The courts.
 Foreign trade and economic relations.
In Europe and America, official sanction has been given to the study of foreign
legislation. IN Great Britain, the enactment of such measures as the Workmen
Compensation Act and the National Health Insurance Act was preceded by an
investigation of the steps taken in otherCountries to solve the problems which
were in issue. Closer home, the Justice Verma Committee consulted public
functionaries, judges, advocates, women organisations, Indian and
internationalAcademics, NGO’s, foreign laws, UDHR 1948, CEDAW 1993 and a
host of legislations to form their recommendations.

SCOPE OF COMPARATIVE LAW

Considering the above, it is important to examine the nature and extent of the
results which the comparative process is likely to secure when applied to the
various departments of law which are conventionally recognized in all legal
systems.
 Comparative Jurisprudence:Comparative jurisprudence is the scholarly
study of theResemblances and differences between the different legal
systems. For example, study of similarities and differences between civil law
and common law countries. It is not aSeparate branch of jurisprudence.
Comparative jurisprudence is also termed as comparative law. International
Comparative Jurisprudence (ICJ) is designed to disseminate original
multidisciplinary ideas to the broad audience of scholars and practitioners.
The ICJ focuses on theoretical and practical approaches to the wide range of
political, legislative, social, economic, and other issues of law. It emphasizes
the comparative analysis of international jurisprudence as well as the
international aspects of national law of countries across the world.

The principal goal of publishing the ICJ is to foster greater understanding in the
field of comparative cross-border jurisprudence. To accomplish its mission, the ICJ
–

(i) Places itself at the forefront of emerging jurisprudential trends by virtue

of strategic guidance of the multinational Board of Advisors, consisting
of renowned legal professionals, judges, and legal practitioners;
(ii) Provides a forum for legal scholars and legal practitioners for discourse
on legal practice and theory.
(iii) Promotes multicultural and interdisciplinary research.
 Comparative Legal History: Comparative Legal History is an
international andComparative review of law and history. First, the writing of
legal history is deeply intertwined with an image of law which tells us what
is law, how it is created and by whom. This is in fact the premise for doing
legal history, as it determines the object of investigation. Second, the
decades 1930-60 saw a profound turn in European legal science and had
great impact on Asian countries and newly independent states. Some legal
scholars challenged the legacy received from the 19th century and launched
an attack on the ‘formalism’ at the heart of its intellectual framework.

Those path-breaking insights gave life to a wave of works self-styled as

comparative legal history published in the period 1930-60. At their heart were
some of the innovative ideas that have fueled original legal-historical research in
the last decades, and which today are shared as an obvious truth (e.g. to place
law in context, to think outside the doctrinal box, the dislike of abstract
theorising). They are the fruit of the antiformalist turn of the 1930-60.

 Constitutional/Administrative Law: Constitutional law is genus and

AdministrativeLaw is a species of constitutional law. A study of one entails
the comparative study of the other. The impact of constitutional law upon
administrative law in England is meagre and blurred specially in countries
like England where the Constitution is unwritten and, as Dicey elaborates it,
the rules which in other countries form part of a constitutional code are, in
England, the result of the ordinary law of the land. In the result whatever
control the administrative authorities can be subjected to must be deduced
from the ordinary law, as contained in statutes and judicial decisions. But, in
countries having written constitution, there is an additional source of
control over administrative action, and that is the written constitution
which imposes limitations upon all organs of the body politic. In these
countries the sources and modes of exercising judicial control over the
administrative agencies are twofold, constitutional and non constitutional.
It is for this reason that while at the very outset every author endeavours to
distinguish the scope of administrative law from that of constitutional law,
they can never afford to forget to mention that in a country having written
constitution with judicial review, it is not possible to separate the two into
watertight compartments. The reason being that the written constitution,
being the organic law, not only sets up but also imposes limitations upon
the powers of all the organs of the State, legislative, executive or judicial,
and if any of these limitations be transgressed by any of these organs, the
act so done will be unconstitutional and invalid. So far as the acts of the
executive or the administration is concerned, this is secured in India in
various ways. The legislative acts of the administration i.e. statutory
instruments (or subordinate legislation) are expressly brought within the
fold of Article 13 of the Constitution, by defining it as including order, bye-
law, rule, regulation, notification having the force of law. A delegated
legislation can therefore be challenged as invalid not only on the ground of
being ultra vires the statute which confers power to make it (as in all
common law countries), but also on the additional ground that it
contravenes any of the fundamental rights guaranteed by Part III of the
Constitution.

 Criminal Law / Comparative Criminal Justice: It is a subfield of the

study of Criminal Justice that compares justice systems worldwide. Such
study can take a descriptive, historical, or political approach. It studies the
similarities and differences in structure, goals, punishment and emphasis on
rights as well as the history and political stature of different systems. It is
common to broadly categorize the functions of a criminal justice system
into policing, adjudication (i.e. courts), and corrections, although other
categorization schemes exist. Comparativist study the four different types of
societies, their methods of enforcement and their different types of
punishment such as capital punishment, and imprisonment. Within these
societies they study different types of legal tradition and analyse the issues
they solve and create. They use their information in order to learn effective
ways of enforcing laws, and to identify and solve problems that may arise
within a system due to its methods.

 Industrial Or Labour Law – Comparative Studies: The integration of

China and Indiainto the world economy has had an important impact on the
world’s labour market. The redistribution of global industry, resulting from
increased competition for capital, has heightened attention to Indian and
Chinese labour standards. To give an example, studies are being done to
examine labour laws at the national and sub-national levels in both
countries and compare them to global standards. Many of China’s standards
are recent and demonstrate a single overarchingapproach to all
employment contracts in the country. India’s approach is older and
lessCentralized, covering different industries and sectors through different
laws.

However,internalDebates within both countries mean that the response to

workers’ well-being is evolving over time. International legal standards that are
not met include the ILO’s Reduction of HoursRecommendation (India), the
ILO’s Holidays with Pay Convention (many Indian states and aLarge segment of
Chinese workers), and the 14-week maternity leave standard (India and
China).Examples of rights that have been legislated include mandatory day of
rest and compensation for overtime.

• Family Law and Law Of Property/Succession: It cannot be denied that

the law of succession often projects a static image. One possible explanation
for this is the fact that certain areas of the law of succession are indeed
somewhat technical. However, a study of comparative family and succession
law, private international law, examples of trust and the transfer of estate
establishes that there are changes that have been detected and explained
principally through comparative study in the field of the law of succession. This
aspect of comparative law is primarily intended for judges, notaries, lawyers,
and registrars of civil status who find themselves in the situation of having to
apply foreign laws as a result of international private law’s ‘applicable law
rules’. However, it is also of great value to academics and researchers, for
whom it stimulates comparative studies by providing the necessary basic

materials on family and succession law.

Conclusion:

To appreciate its significance of the study of comparative public law, it is perhaps

useful to distinguish between three purposes pursued by those who use foreign
patterns of law in the process of law-making. Foreign legal systems may be
considered first, with the object of preparing the international unification of the
law, secondly, with the object of giving adequate legal effect to a social change
shared by the foreign country with one’s own country, and thirdly, with the object
of promoting at home a social change which foreign law is designed either to
express or to produce!”.

 Examples of legislation-especially in the field of commercial law-passed

with the object of international unification are numerous, and their number
will grow more rapidly as a result of the entry of the United Kingdom into
the European Communities. Transport by sea,” by road, by air have been
regulated to some extent by such international legislation. And in the very
different areas of the conflict of laws, including such matters as wills, the
adoption of children and the recognition of foreign divorces.”

 It Is secondly, in the field of family law that we find the principal examples
of legislative achievements and proposals partly based on foreign patterns
with a view to the adjustment of the law to social change. This aspect
comprises a detailed study of foreign patterns of legislation, here come the
study of divorce law, anti rape laws and uniform civil code for the country.
 Nor do we, thirdly, lack examples for the use of foreign legal patterns for the
purpose of producing rather than responding to social change at home---
examples as different in character as restrictions on the freedom to strike,
the encouragement ofComplaints against maladministration and the
suppression of racial and social discrimination.
The use of comparative law In working out new Acts of Parliament and new codes
raises important theoretical and practical questions. Irrespective of the
functioning of the new rules, however, the experience got so far shows that –

1. The use of comparison is a basic element of the civil law codification.

2. The comparison should be a functional one.
3. The comparison should include an analysis of the economic and legal
system of the country which codifies as well that of the country compared
with.

To conclude, it is clear that to have good laws; knowledge, comparison, addition

and cooperation with foreign experts and foreign public law methods is a
necessity.

“All legal systems are mixed; all legal systems are

overlapping, they are all mingled together”
BIBLIOGRAPHY

 Baron De Montesquieu (1949). The Spirit of the Laws. New York: Hafner.
 H. C. Gutteridge, Comparative Law: An Introduction to the Comparative
Method of Legal Study And Research (Cambridge University Press, 03-Dec-
2015 – Law – 226 pages).
 Sir Henry Maine: A Study in Victorian Jurisprudence. Cambridge University
Press. P. 34.
 M.P. Jain, Changing Face of Administrative Law
 D.D. Basu, Shorter Constitution of India
 D.D. Basu, Commentary on the Constitution of India
 I.L.I. Annual Survey of Indian Law
 Christopher Forsyth, Mark Elliott, Swati Jhaveri, Effective Judicial Review: A
Cornerstone of Good Governance (Oxford University Press, 2010).
 D.D. Basu, Comparative Constitutional Law (2nd ed., Wadhwa Nagpur).
 David Strauss, The Living Constitution (Oxford University Press, 2010)
 Dr.Subhash C Kashyap, Framing of Indian Constitution (Universal Law, 2004)
5. Elizabeth Giussani, Constitutional and Administrative Law (Sweet and
Maxwell, 2008).
 Erwin Chemerinsky, Constitutional Law, Principles and Policies (3rd ed.,
Aspen, 2006)
 M.V. Pylee, Constitution of the World (Universal, 2006)
 Mahendra P. Singh, Comparative Constitutional Law (Eastern Book
Company, 1989).

WEBLIOGRAPHY

“Constitutionalism”, [email protected],
retrieved from
http://www.legalservicesindia.com/article/article/constitutionalism-
1699-1.html

https://www.slideshare.net/nsrkbharat/comparative-public-law-and-
system-of-governance.
http://rem.tijdschriften.budh.nl/tijdschrift/lawandmethod/2015/12/
RENM-D-14-000

https://www.academia.edu/7677972/
Comparative_Public_Law_and_Systems_of_Governance_3

http://www.ili.ac.in/Comparative%20Public%20Law.pdf.

https://www.jstor.org/stable/pdf/1112768.pdf.