Comparative Law
Synopsis
I. Introduction
Comparative Law is abstract in nature. Usually two responses are given to Comparative Law, as hostile or chilling indifference. It is called hostile because it is not independent. It is not a separate branch of science. It is not important to all as per people. Comparative Law should be regarded as a method of study & research to remove the indifference towards it. Different ways of doing research are:-1. Historical
2. Analytical – Detailed study
3. Comparative analysis The term Comparative Law is a modern term but it has its roots in the history of mankind. Romans and Greeks have talked about it. II. Origin of Comparative Law A. Greeks 1. Plato: He compared Constitutions of Greek City States.
City States: A place where central city was surrounded by villages. They had common language, culture, etc.
Plato had himself given an ideal Constitution by studying various Constitutions. He was indirectly studying Comparative Law. 2. Aristotle: He studied Constitutions of 150 City States.
He had studied the common principles in all Constitutions. 3. Thiophrastus: Modern version of Comparative Law is visible in his works. He had tried to study the common principles of City States and had put forward the points of differences. He indirectly used the techniques of Comparative Law. B. Roman Law: Romans never considered Comparative Law as important.
They never applied the techniques of Comparative Law.
They believed that their legal system was supreme so there was no need to study other Laws.
Roman Laws were based on "Jus Gentium" meaning laws of nations regulated by customs. 1. Cicero: According to Cicero all non-roman laws were confusing and absurd and thus there was no need to study them.
But occassionally romans did refer to other laws. They were:
1. For theorotical amusement
2. Law of Moses. 2. Law of Moses: Moses came before Christ. TO further Christianity he had stated that Roman Laws and Biblical Laws are similar to each other. Moses was given 10 Commandments by God. There is no other example of Common Law used by Romans. C. Age of Humanism 1. Fortescue He was an English Author. He had written two famous books:
1. De Laudibus Legum, and
2. Governance of England.
In these two books, he compared English Laws with French Laws. The Comparison was made with the sole object to prove that English Laws were superior than French Laws. 2. Struve and Stryke (17th Century) These two were English authors. They had done comparison between Roman and German Private International Laws. 3. Wolf and Nettlebac They belonged to the Age of Enlightment & Natural Law.
They defined Natural Law is an intellectual construct which comes from the fertile minds of Jurists.
In this definition they are talking about applying Comparative Law. D. Bacon & Leibniz 1. Bacon: According to Bacon, a lawyer must free himself from vincula of his National System before he can estimate its true worth. Bacon said we should study legal systems of other countries.
Study other legal systems and then compare them with your legal system and know the worth of your legal system. The object of Judgement cannot be Standard of Judgement.
Bacon & Leibniz talked about Comparative Law indirectly. Bacon tried studying various legal systems and tried to codify it. But it could not be materialized. 2. Leibniz He talked about Universal History, i.e. a comparative portrayal of laws of all people, all places and all time. It is a vague and distinctive view. Works of both these authors could not be materialised but later only Montesquieu and Hugo Grotious developed this view. E. Montesquieu Montesquieu deserves to be called the founder of Comparative Law. He was the first person to realise that Rule of Law is not an abstraction but it must be regarded as a background of history or environment in which it is called upon to function.
Book: "De Espirit" detailed inquiry into the laws of the World. Rule of Law:
1. Equality before law
2. Predominance of legal spirit
3. Supremacy of the Constitution
He also recognised the worth of Comparative Law. Criticism:
His students and other Jurists could not find the material which formed the basis of his research.
The source was absent.
So the people thought of accepting what Hugo Grotius said. F. Hugo Grotius He talked about Law of Nations.
He aimed at producing an imperical Natural Law by making comparison of all existing laws.
He is Savigny's predecessor.
Hugo Frotius studied Natural and Positive Law.
This was practical application of Comparative Law. And thus Hugo grotius was widely accepted. G. Savigny His own ideology - Historical School of Jurisprudence.
He talks about the concept of "Volkeigst". Savigny's Historical School of Jurisprudence had repressive effect on development of Comparative Law because it is not easy to understand his concept of Volkeigst and Savigny and his followers rejected the study of any but Roman and German Laws because they said Germanic, Roman & Canon Laws are and will remain the most important. It did not help the development of Comparative Law as their approach about other Laws was repressive. They were interested only in studying Roman & German Laws. H. Comparative Law in Germany It took a long time for Compatrative to get recognition in Germany.
Lawyers were attached for porochialism (focused on local area).
During 19th Century people started talking codification of Law and Comparative Law.
For codification comparison with other legal systems was done.
Prior to 19th Century lawyers did not find Comparative Law necessary as they found German Laws superior. 1. Feurbach He realized the worth of Comparative Law. He himself believed that Comparative Law is very necessary while he was studying German Laws. His demand was that Comparative Law is necessary when you are talking about Universal Legal Science. He was attacked for his views, as he was against the views of Savigny which said Roman & German Laws are superior. 2. Jhering Views of Feurbach were echoed by Jhering. He said if one did not understand the worth of other countries, one could not understand the worth of his own legal system. His thinking matched Bacon. He also studied other Legal Systems. 3. Bierling He said, "Comparative Law is of little or no use for studying the principles of Law". 4. Radbrush He denied that Comparative Law had any significance for the underlying ideas of laws, though he powerfully detended its value for their Legislation as a useful means of obtaining the widest possible views of actual laws. German Jurists- Pandectics: Group of people who studied in German university. According to them Comparative Law is not necessary. They did not contribute to Comparative Law. 5. Immanuel Kant. He said all knowledge comes from experience. All decisions are based on the past experience. His philosophy was carried forward by a group of people named "Neo Kantian". They said Law must be just and Comparative Law is necessary to understand what a just Law is. Just Law - Ideal Law. Kant argued that fundamental concepts of the human mind structure human experience, that reason is the source of morality, that aesthetics arises from a faculty of disinterested judgment, that space and time are forms of our understanding, and that the world as it is "in-itself" is unknowable. His beliefs continue to have a major influence on contemporary philosophy, especially the fields of metaphysics, epistemology, ethics, political theory, and aesthetics. He is considered the central figure of modern philosophy. 6. Randbrush According to him Comparative Law is not useful. It is only impportant to legislators while enacting new laws or bringing reforms. He accepted the theorotical utility of Comparative Law. 7. Mittermaier He was the first co-founder, co-editor of "Zacharias" and also a proffessor at Heiderburg. He was the first person who used Comparative Law in Germany. According to him, merely describing and portraying foreign Laws does not amount to study of Comparative Law. One has to compare it with his own Legal System. He juxtaposed the other Legal Systems, analysed them, i.e. studied Comparative Law on a large scale. He also analysed the role of Judiciary, Politics, Sociology of Law and Environment. 8. Foelix (France Jurist) He was the editor, co-founder of the Magazine "Revie". He himself wrote artricles in it for Foreign Laws. He wanted the Jurists to know the importance of Comparative Law.
His work was appreciated but later on, the place allotted to him for writing articles went on shrinking as people did not consider Comparative Law necessary. During 1860, his works from the Magzines dissappeared. Courses in Comparative Law were started. Foelix wanted it on a larger scale. He led to the recognition of Comparative Criminal Law in France.