INTRODUCTION
Comparative law is an intellectual law which compares different legal systems (especially major legal systems) of the world without isolation, on the basis of their similarities and differences, weakness and strength, in order to evaluate the problems existing in different legal systems of the world. 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.
CL is a method of research to compare provisions of laws of different legal system of the world. CL is not a branch of law, in the sense that it doesn’t have any specific content or subject matter like that of constitution and jurisprudence. It is simply a comparison between the legal systems.
Many scholars have defined CL in their own words. According to
Prof.H.C Gutteridge, CL denotes a method of study and research and not a distinct branch or department of the law.
De Cruz describes CL as the systematic study of particular legal traditions and legal rules on a comparative basis.
Konrad Zweigert and Hein Kotz defines CL as the comparison of the different legal systems of the world.
HISTORY OF COMPARATIVE LAW
According to the prevalent view, montesquieu regarded as the 'father' of comparative law. Comparative law in the US was brought by a legal scholar fleeing persecution in Germany, rudolf schlesinger. Schlesinger eventually became professor of comparative law at cornell law school helping to spread the discipline throughout the US.
IMPORTANCE AND FUNCTIONS
Comparative law is a very important discipline in communication between legal systems. It may provide the basis for the production of bilingual dictionaries that include the information necessary to make legal communication across borders successful. In this globalizing world, comparative law is important for it provides a platform for intellectual exchange in terms of law and it cultivates a culture of understanding in a diverse world. Furthermore, comparative law helps in broadening horizons for law reformers and legislators around the world. It also helps in maintaining international relations between the countries.
The main function of CL is to make law international by ending the narrow mindless, dissolving national prejudices, promoting international understanding, helping law reforms in developing countries and inculcating critical attitudes.CL helps in ending legal narcissism (principle of self pride in native system).
DIVISION OF CL
CL can be divided into different subjects depending upon the purpose of degree of ambition.the main divisions of CL are;
DESCRIPITIVE CL:
Descriptive CL analyses the differences and similarities of the different legal systems on the basis of the theory by describing them.it is generally based on the theory like what theory is there in hindu law,in muslim law,in islam law etc.so this is not the final one.this CL can be criticized by the comparative lawyers.
So if we compare the provisions of different legal system on the basis of theories related to them then this type of CL is known as descriptive CL.
DOGMATIC(CLASSICAL/ORTHODOX/FUNDAMENTALIST)
The word ‘dogma’ refers to principles.if we compare the himdu law,its doama,fundamentals,principles with the other legal system then this type of CL is known as dogmatic CL.this CL analyses upto what extent the principles are similar to different legal systems. So this CL deals with the classification of law on the basis of their principles.
This is a practical classification because with this comparison we get a certain type of conclusions about the drawbacks of different legal system,then it can be applied.
Eg;we are on the process of constitution making.For this we can compare our proposed constition and other nation’s constitution.then we can analyse what are the drawbacks of our proposed constitution and then we can apply them in drafting our new constitution.
CONTRASTING CL;
If we compare the legal systems only based on their differences then it is called contrasting CL.this CL only studies about the differences between the legal system.
Some of the jurists believe that we can divide CL into two types as
;
INTERNAL CL;
It is that type of CL which compares the legal systems which has the same community/society/religion.eg; the comnparison of muslim community of Bangladesh and India.
EXTERNAL CL;
It is that type of CL which compares the legal system which has different community/society/religion.eg;the comparison of legal system of Nepalese community and American community.
CL can also be divided on the basis of swedish system.on the basis of SWEDISH SYSTEM CL can be divided into 2 parts;
In the first type,
The foreign law is subservient.
The national law is dominant.
This is the comparison in which foreign law is subservient and national law is dominant.
In the second type,
The national law is subservient.
The foreign law Is dominant.
This is the comparison in which national laws are subservient but foreign law are dominant.
RELATIONSHIP WITH OTHER LEGAL SUBJECTS
Comparative law is different from the fields of general jurisprudence (legal theory), international law, including both public international law and private international law (also known as conflict of laws). Despite the differences between comparative law and these other legal fields, comparative law helps inform all of these areas of normativity.
DIFFERENCE BETWEEN CL AND
PRIVATE INTERNATIONAL LAW
PRIVATE INTERNATIONAL LAW
Private international law and CL are entirely distinct but also they interact with each other. Private international law is also referred as a law of conflict. It is a conflict between two laws as well as a part of the positive municipal laws whereas CL is a pure science. This law generally has certain problems to be solved but CL doesn’t have problems to be solved. It is simply the comparison between any two legal systems. But also Comparative law would be applicable to private international law when developing an approach to interpretation in a conflicts analysis.
DIFFERENCE BETWEEN CL AND PUBLIC INTERNATIONAL LAW
Public international law is the laws of Nations which has international jurisdiction which can be applied to the countries which are the members of that treaty, protocol, convention and agreement. It regulates the relations between the countries i.e. international relation. But CL is just a comparison of legal systems of civilized countries. It is not concerned to regulating international law like that of public international law.
DIFFERENCE BETWEEN CL AND LEGAL HISTORY
Legal history refers to the study of law of certain time period of the past. It is the comparison of law depending on time, whereas CL is only the comparison of legal system without dependency of time.
Legal history and CL are like twins sisters in the sense that they have mutual and helping relation. They are not conflicting. There is comparison of law in legal history and there is consideration of legal history in CL i.e. legal history also compares the laws and CL also discovers law of different time.
DIFFERENCE BETWEEN CL AND LEGAL ETHNOLOGY
Ethnology is the studies of same ethnic group living in different countries. Different type of ethnic group have different laws and they want to give priority to the laws made by their own ethnic group.
Ethnology was previously considered as the matter of history but nowadays it is considered as a part of CL.CL compares the laws of one ethnic group of a country to the same ethnic group of another country.CL and legal ethnology are different things but whatever the laws have been developed by legal ethnology has influence in CL. The things done by the ethnic groups as per rules and regulations has great role to CL.
DIFFERENCE BETWEEN CL AND SOCIOLOGY OF LAW
Sociology of law deals with relation of law with other social issues like how economic condition, social life, life of practical group etc affects the law. Sociology also deals with the issues of society which has to be given legal priority and also what kind of new laws need to be introduced in the society.
Sometimes, law and society can be conflicted with each other. The usefulness of comparative law for the sociology of law (and vice versa) is very large. The comparative study of the various legal systems may show how different legal regulations for the same problem function in practice. Conversely, sociology of law may help comparative law answer questions. Such as: How do regulations in different legal systems really function in the respective societies? Are certain legal rules comparable? How do the similarities and differences between legal system4s get explained? Thus, CL and sociology of law are inter-related to each other.
Comparative law may contribute to legal theory by creating categories and concepts of general application. Comparative law may also provide insights into the question of legal transplants, i.e. the transplanting of law and legal institutions from one system to another.
CONCLUSION
CL is a discipline which incorporates the idea of comparison between legal systems. CL examines the foreign legal system but not separately. It upgrades the supply of social conflict and also cultivates a culture of understanding across the world. Thus CL is analytical activity where law is object and comparison is method.
The main motto of this presentation is to give a simple and clear idea about the history, importance and functions, divisions of CL and their relationship with other legal system.
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