Comparative Law

Course: Law 447 Nature: Compulsory

Credit: 3 Duration: 48 hours

Kishwor Sapkota
Prithvi Narayan Campus
Unit 1: Comparative Law (10 hrs)
1.1 Concept and Evolution of Comparative Law
1.2 Relationship and Distinction with Other Disciplines
1.3 Importance for Studying Comparative Law
1.4 The Functions, Objectives and Uses of Comparative Law
1.5 Division of Comparative Law
1.6 Methods of Comparative Law
1.7 Factors, Theories and Criteria of Grouping of Legal Systems into Legal Family
1.8 Problems of Studying Foreign Law
1.9 Nature and Position of Comparative Law in the Era of Globalization

Unit 2: Major Legal Systems (30 hrs)

2.1 Common Law System
2.1.1 Concept, Development and Sources of Common Law
2.1.2 Concept, and Sources of English and American Law
2.1.3 Court Structure and Legal Profession under English and American Law
2.2 Civil Law System
2.2.1 Concept, Development and Sources of Civil Law System
2.2.2 Concept and Development of Roman, French and German Law
2.2.3 Court Structure and Legal Profession under French and German Law
2.3 Socialist Legal System
2.3.1 Concept, Development and Sources of Socialist Law
2.3.2 Characteristics of Socialist Legal System
2.4 Religious Legal System
2.4.1 Concept and Sources of Muslim and Hindu Law
2.4.2 Schools of Muslim and Hindu Law

Unit 3: Modern Laws of the South East Asia (8 hrs)

3.1 Chinese Law
3.1.1 Concept and Court Structure
3.1.2 Legal Profession of Chinese Law
3.2 Japanese Law
3.2.1 Concept and Court Structure
3.2.2 Legal Profession of Japanese Law
3.3 Indian Law
3.3.1 Concept and Court Structure
3.3.2 Legal Profession of Indian Law
Contents
Unit 1: Comparative Law.................................................................1
Unit 2: Major Legal Systems .........................................................17
Unit 3: Modern Laws of the South East Asia ................................18
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Unit 1: Comparative Law
Meaning
Comparison is an important source of knowledge and understanding. It is said to be a technique, a
discipline, an implementation and a method by which the values of human life, relations and activities
are known and evaluated.
The importance of comparison has received recognition in all quarters and by everybody in the field
of study and research. Its worth is reflected in the works and writings of the scientists, historians,
economists, politicians, jurists, and others engaged in investigations and research activities. Whatever
the notions, ideas, principles and theories, they are able to formulate, is said to be the outcome of
comparative method of study. This is also true of law.
The various contributions of legal thinkers and writers is by all means the results of their comparative
approach. As Jurisprudence is regarded as the science of law, its essential feature is that it is a particular
method of study, not the law of one country, but the general notions of law itself, that is the law of
almost all the countries of their world, these legal philosophers and jurists have propounded their own
line of thinking towards the study of law, its philosophy, functions and institutions after making
extensive study of their own legal system and the system of various other countries of the world, by
comparing each from one another. This approach in the field of the study of law has given rise to a
new branch of legal study, which called by the name of Comparative Law, sets out a method of
studying laws of different nations in a comparative manner. Various others associated with the making,
application and administrative of law also find in this method a shape for their guideline, a tool for
workmanship and a devise to meet with a situation, which may conceivably arise in the field of their
activity, as by comparing their own laws with the laws of other legal systems they can amend, modify
and add whatever is required in the interest of penetrated further in the sphere of international law,
legal studies, trade and commerce, diplomatic and cultural relations with a stretching hand and now
its importance is not a matter of course, but a reality in the service of mankind, society and nations.

Nature of Comparative Law

Comparative law, in its most simple sense, denotes a method of study and research, by which laws and
legal institutions of two or more countries are compared. It is concerned with the examination of the
contents of different legal systems in their answer to the solution of various legal problems. It is a
technique by which certain ends can be achieved by looking to the laws of various nations in
comparison with one’s own laws.
Comparative law is not a subject but a method of study. It is regarded as a process of studying foreign
laws in comparison with local laws. Its work is to ascertain the differences and similarities in the legal
rules, principles and institutions of two or more countries with a view to provide solutions for local
problems. It is a discipline to maintain a social order by the knowledge and experience of others living
in a foreign country.

Comparative Law: Whether a Science or Method of Study

There is a sharp difference of opinion regarding the question whether comparative law is a science or
an art, i.e. a method of study.
Munro Smith, Lambert, C.K. Allen, Rabel, Ullman, Saleilles and Tarde are of the view that
comparative law is a science, because it is concerned with the study of law in a systematized and
scientific manner. The word ‘Science’ according to Salmond, in its widest permissible sense means
and includes the systematized knowledge of any subject of intellectual enquiry. Comparative law is a
science because its aim is to study the laws of different countries in a systematic form, with the object
ascertaining the similarities and differences existing therein and to analyze the solutions, which other
systems offer for any problem. The approach of comparative law is scientific in the sense that it comes
to general conclusions by tracing like and similar causes, eliminating the unusual and disturbing
factors, which are found in one country and untraceable in another and make the result different in
some points, while similar in other.
Prof. C.K. Allen – “Comparative law is not a body of law in the positive sense, but a method
of scientific enquiry.”
Levy Ullman – “Comparative law has been defined as a branch of legal science, whose object
is to bring about systematically the establishment of closer relations between the
legal institutions of different countries.”
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Saleilles – regards comparative law as both a fundamental and an auxiliary science; it aims to
study different legal systems from social point of view and then to compare the
general principles of law and usages and finally it should formulate the type or types
of legal systems met with. As an auxiliary science, comparative law should aim in
the progressive development of national law by setting a positive goal, which would
enable them to approach as near as possible for a common law of civilized humanity.
On the other hand, there is a group of writers like Bryce, Tenks, Gutteridge, Bartholomew, Holland,
Schlesinger, etc. who have formulated the view that comparative law is a method of study and not a
science. According to these writers, the task of comparing foreign laws with local laws is a technique,
which cannot be done by everybody. It requires an expert approach and one who is acquainted with its
technique can possibly do this job. The process of comparison is an art, which does not require any
kind of scientific enquiry, nor can it be classified as a distinct branch of legal learning. In almost all
branches of law, this method is very well employed. These writers do not regard comparative law as a
legal science because it has not ascertained the principles, notions, or conception of any legal term. It
is only a method to compare the rules of law.
Gutteridge – “The fundamental characteristics feature of comparative law viewed as a method,
lies in the fact that it is applicable to any form of legal research. The method is
equally at the services of the legal historian, the analytical jurist, the judge, the
practitioner and the teacher of law.”
Bryce – “Comparative method collects, examines, collates the notions, doctrine, rules and
institutions, which are found in every developed legal system, or at least in most
systems. ….”
The question whether comparative law is a science or an art is really a controversial one and in view
of the various views of the writers given above, it remains unsolved. It is true that comparative law in
its form and approach cannot be classified as a distinct branch of learning in law and on the other hand,
it cannot be called purely a method of studying the problems inherent in the law of different countries.
The suggestions, therefore, is that one should look the term ‘Comparative Law’ in the form of both a
science as well as a method of study.

Definition of Comparative Law

A good number of writers have made attempts to define the term ‘comparative law’ but most of them
have only highlighted the purposes and functions of comparative law. About the nature of comparative
law, no successful attempt has been made. In fact, comparative law is a subject of recent origin and
growth and there are many controversies regarding its nature.
Gutteridge – “Legal definitions are notoriously satisfactory and apt to lead to controversies,
which are barren of any result. This, in particular, is the case, when any attempt
is made to define comparative law, since the subject-matter being non-existing
is one which defies definition. The consequence is that definition of
comparative law, which have been framed does not deal with the nature of
comparative law, but only with its objects.”
Levy Ullman – “Comparative law has been defined as a branch of legal science, whose object
is to bring about systematically the establishment of closer relations between
the legal institutions of different countries.”
Holland – “Comparative law collects and tabulates the legal institutions of various countries,
and from the results thus prepared the abstract science of jurisprudence is enabled
to set forth an orderly view of the ideas and methods, which have variously been
realized in actual systems.”
Julious Stone – “Comparative law seeks to describe what is common and what is different in
different legal systems or to seek a ‘common core’ of all legal systems.”
Sir Henry Maine – “The chief function of comparative jurisprudence is to facilitate legislation
and the practical improvement of law.”
Lee – “Comparative is an independent method of study and research in law.”
Bogdan – “Comparative law encompasses … The comparing of different legal systems with
the purpose of ascertaining their similarities or differences.”

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Origin of Comparative Law
Comparative law, as it is understood today is definitely a modern character. But there is no doubt about
the fact that even in very ancient time, there was a tendency to look into the laws of other countries.
At the same time, there are ample example to prove the fact that many legal systems of the world did
not encourage study of foreign laws. The Roman law itself did not provide any incentive to the
development of the comparative law because the Roman law was not the result of any process of
comparison with foreign law. The ‘Corpus Juris Civilise’, which represented the Roman law,
contained utterances of the emperors and also the edicta issued directly by them as head of the State,
or the rescripta, vis., answers returned by the emperors when consulted on questions of law by the
parties in a suit or by magistrates.
The Roman described their legal system as consisting of two ingredients, “All Nations”, says the
Institutional Treatise, who are ruled by laws and customs, are governed partly by their own particular
laws, and partly by those laws which are common to all mankind. The law which a people enacts is
called the Civil Law of that people, but that which natural reason appoints for all mankind is called the
Law of Nations, because all nations use it.” The part of the law ‘which natural reason appoints for all
mankind’ was the element, which the Edict of the Practor was supposed to have worked into Roman
jurisprudence. Elsewhere it is styled more simply Jus Naturale, or the law of nature; and its ordinances
are said to be dictated by Natural Equity (naturalis aquitas) as well as by natural reason.
On the other hand, the common law of England was all open for the development of comparative law.
The first among the promoters was Leibnitz who attempted to survey the laws of the civilized
countries, though he was not very successful in his attempt nevertheless it has its academic value. In
England, Montesquieu is regarded as the founder of comparative law because he was the first to realize
that rule of law should not be treated as abstraction, but must be regarded against a background of its
history and of the environmental in which it is called upon the function. In his famous book Del Espirit
des laws of the world enough ultimately, he failed to achieve his goal. The origin of comparative law
may at the earliest be traced from the middle nineteenth century. Not only the movement of
codification of law also did not do anything in favor of study of foreign law. Some attempts, however
have been made in France and Paris where a chair of comparative law and comparative criminal was
established in 1832 and 1846.
In America, there was total hostility towards anything which was associated with English law.
Accordingly, American legal system completely ignored the study of English law. However, they did
take little support from the French legal system.
Much of the pioneering work in regard to comparative law was done in England. Lord Bacon and
Mansfield were quite instrumental in this respect. Henry Maine’s Ancient Law (1861) was the great
eye-opener towards the development of comparative law. He introduced a correlative method into the
history of institutions.
In 1894, the Quain Professorship of comparative law was established at University College, London.
The English Society of Comparative Legislation was found in 1895.
The twentieth century marks the realization that the policy of legal isolation is not a good policy and
is not conclusive to the growth of a unified law. In recent years, various institutes have been established
for the purpose of carrying on research efforts are being made to promote this subject but still major
breakthrough regarding the development of this subject has not been seen. However, its utility and
importance are being realized. The earlier doubts regarding its existence are almost over, now it is
regarded as a branch to legal learning and technique.

Evolution of Comparative Law

It can be said that the comparative law in modern sense has its origin at Paris in 1900 when during the
world exhibition, French scholars ‘Edward Lambert’ and ‘Raymond Saleiles’ founded the international
congress for comparative law, they were striving for a common law of mankind through comparative
law. The comparative law is developing continuously since but then WWI and WWII weakened the
idea of creation of ― droit commun de I‘ humanitel (common law of mankind). Lambert emphasizes
on teaching comparative law at per with that of municipal law and prescribed four lectures as week in
comparative law to law students.
The genesis of comparative law can be traced back to ancient Greek and Roman Empire.

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Comparative law in ancient Greek city states: Greek thinkers were highly involved in comparative
researches. Plato made a comparison of the laws of the Greek city states. He wanted to make an ideal
constitution by comparison. Another Greek thinker Aristotle, before writing his ―politics among
nation examined the constitutions of 153 city states. Greek also borrowed from the Egyptians and in
turn influences the Roman law concerning aliens.
Comparative law in Roman Empire: The earlier Roman jurists were a sort of legal narcissists. They
were too much convinced in the superiority of their legal hence did not pay much attention to the
foreign law. Cicero described all non-Roman law as confused and absurd but in Post-Classical Era
(3rd-4th Century AD), an interesting work on comparative law known as collation legum mosasicarum
et Romanarum (Collection of Roman and Biblical Law) came into existence, that showed Roman and
Biblical law were similar.
Comparative law in middle ages: In the earlier phases Canon and Roman law were prevalent in
Europe. The then warlords believed in the law of the subjugator – an idea unfavorable to comparative
law.
Although, there was an absence of writings on comparative law, on the European continent two works
on comparative law came into existence which compared English and French law; however, it is not
an objective analysis but produced with the sole aim to show the superiority of English law.
In the age of humanism (period of renaissance): In this period lawyers were interested in graceful
law. Serious attempts were made in the field of comparative law.
Middle Age: In this era, Savigny and his followers rejected the study of any other laws except Roman
and German Law erroneously because comparative law could have been used by them to support their
idea that all law is creation of Volksgeist (the popular spirit of the people). Levi was the first man to
purpose the international unification of commercial law on the basis of comparative law.
In between 1800-1850, we can witness the emergence and flowering of comparative law. While
developing new and suitable rules American jurists reached for Roman and European law especially
the French doctrine.
Modern period of comparative law: This period greatly contributed in the rejuvenation of modern
comparative law. The culminating point of this stage of development of comparative law was indeed
the Paris congress of comparative law 1900. The congress not only identifies the aims of comparative
law but also proposed droit commun de I‘ humanite for the pursuit of world unity. In 1876, the French
justice ministry established an office de legislation etrangere et de droit international (Office of the
Foreign and International law). Comparative law was recognized as a new scholarly discipline by
accepting it in the university curriculum for the first time in France.
H.C. Gutteridge, in 1946, wrote a book ‘An Introduction to the Comparative Method of Legal Study
and Research’ which contributed to the growing body of comparative law. Similarly, Rene David
1950, ‘Elementary Traits of Comparative Law’ also played role in flourishing of comparative law.
The task of modern corporatist has become comfortable due to the increasing amount of material
available in translation, interdisciplinary degree program changing attitudes of the practitioner
availability of research funding and growing publications of comparative law journals. In this way,
though, many historical precedents could be cited. However, the development 9 of comparative law as
legal science is indeed of recent origin. Only in the 20th century its importance and method was
recognized and began to be studied systematically.

Relationship and Distinction with Other Disciplines

1. Comparative Law and International Law
International law is the body of legal rules, norms and standards that enables to regulate the relationship
between sovereign states and entities. Basically, international law is divided into two types and they
are;
i. Private International Law
ii. Public International Law

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Comparative Law and Private International Law
• Private International Law can be understood as the branch of law that is administered in special
cases between private citizens of different countries. On the other hand, comparative law deals
with diversity and plurality of legal systems of different countries.
• Private International Law is the part of municipal law whereas comparative law is a pure
science having its own scientific approach and methodology for study.
• Private International Law is more selective in nature than comparative. On the other hand,
comparative law compares different legal systems and has no specific practical aim to consider.
• Comparative law would be applicable to private international law when developing an
approach to interpretation in a conflict’s analysis.
Comparative Law and Public International Law
• Public International Law is the body of legal rules that regulate the relation between different
states.
• Comparative law is important for the understanding of sources of international law (e.g. general
principles, international customary laws,) by studying the development of globalized society
which is thus applicable in public international law.
• Comparative law can help international legal institutions (e.g. UN) in analyzing laws of
different countries regarding their treaty obligations.
2. Comparative Law and Legal History
• Legal history is the study of how law has evolved and why it has been changed. It basically
deals with the origin and evolution of law.
• Relationship between comparative law and legal history is termed as twin sisters.
• Legal history involves comparative elements and makes comparison consciously and
unconsciously in the same way comparative law also has to take history of legal institution and
procedures into consideration while making comparison.
• Legal historians often use the comparative method and comparatists must often investigate and
analyse the legal history in their respective studies.
• Thus, both of these disciplines are related with each other closely and separation of these two
may lead to unfortunate consequences.
3. Comparative Law and Jurisprudence
• Jurisprudence is the science of law which deals with basic concepts of legal system and
Comparative law is the method of only comparing different legal systems of different countries.
Thus, comparative law is scientific study whereas jurisprudence is theoretical study.
• Jurisprudence deals with basic concepts of legal system whereas comparative law only
compares different legal systems of countries.
• The aim of comparative law is purely practical whereas the aim of jurisprudence is to
understand the basis of legal system.
• According to Paton, all schools of jurisprudence rely on comparative law. So, it is impossible
to conceive of the existence of jurisprudence without comparative law.
4. Comparative Law and Sociology of Law
• The Sociology of Law is understood as the sub-discipline of sociology and interdisciplinary
approach within legal system. It generally means that how law is related to the functioning of
social institutions in the society.
• It is generally accepted that sociology of law and comparative law not only have a lot to learn
from each other but also use much the same method. Sociology of law can use the discoveries
of comparative law. In the same way comparatists can not ignore the insights and discoveries
of legal sociologists.
• In the words of Cruz, both engaged in charting the extends to which law influences and
determines man´s behaviour and the roles played by law in the social schemes of things.
• The difference between sociology of law and comparative law is that the sociology of law
covers much wider aspects than comparative law.
• Sociology of law observes how the legal institutions operate and comparative law concern itself
with the question of how the law ought to be.

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5. Comparative Law and Anthropology
• Both disciplines compare legal rules, institutions and practices in order to draw conclusions
from the similarities and differences they observe.
• They differ in focus. The comparatists look primarily at the technical and normative side of
law while anthropologists are more interested in its cultural origins and functions.
• Comparative lawyers can open anthropologists´ eyes to the conceptual underpinnings, peculiar
mechanics and the policy goals of law. Conversely deep legal systems are embedded in their
respective cultural contexts.
6. Comparative Law and Legal Ethnology
• Ethnology is concerned with comparison and analysis of characteristics of different people and
relationship between them. It is a branch of cultural anthropology dealing with comparative
and analytical study of culture.
• Legal ethnology is the branch of comparative law which contributes to the task of comparison
and analysis through its own unique discipline and technique of observation.
• The task of modern ethnology is to study the changes suffered by societies in adjusting the
encroachment of higher civilization.
• Legal ethnology has special contribution to make by assisting the legal system of the
developing societies by giving them the benefits of its comparative research.

Importance for Studying Comparative Law

The importance of comparative law has increased enormously in the present age of internationalism,
economic globalization, and democratization.
Some of the major importance of comparative law can be listed as;
• Comparative law is an academic discipline that involves the study of legal systems, including
their constitutive elements and how they differ, and how their elements combine into a system.
• Comparative law is a way to build a basic foundation through which laws all over the world
operate.
• Comparative law plays a major role in the enhancement of legal education. It helps to broaden
our general understanding and knowledge for both students and professionals.
• Comparative law is important for creating new legislation, new precedent and recommending
law reform.
• It is also applied in the harmonization and unification of laws, and the interpretation of the
existing law.
• It provides an insight into various political, economic, cultural, social and historical aspects
which paves a simpler way to address trade relations or diplomatic relations with other nations.
• Comparative law has caught the attention of both private and international law and thus is
significant in analyzing the approach and method for the relationship between individual and
state, and from state to state.
• An emphasis on comparison will help in finding out the new policies with better reach and
implementation.
• It not only fosters good international relations but also help in awareness and strong
international cooperation.
• Comparative law also helps in mutual understanding and the dispelling of prejudice and
misinterpretation.

Functions of Comparative Law

• It helps in finding lacunas in law.
• It dissolves national prejudices.
• It makes law global (promotes international understanding).
• It helps to end narrow mindedness.
• It assists to prove legal narcissism.
• It assists in critical understanding of legal issues and topics.

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Cruz (1999) examines the following functions and purposes;
• It aids to legislation and law reform.
• It is a tool of construction.
• It is a means of understanding legal rules.
• It contributes to the systematic unification and harmonization of law.

Objectives of Comparative Law

• To attain a deeper knowledge of the legal systems in effect.
• To perfect the legal systems in effect.
• To examine legal system
• To find out similarities and differences between laws in a similar issue between different
legal systems.
• To inform national lawmaking
• To assist judges in the resolution of difficult questions
• To provide a basis for legal unification or harmonization
• To increase knowledge and extend awareness, especially in legal education

Lambert viewed major two purposes of comparative law;

(a) Comparative Legal History
(b) Comparative Legislation
According to Gutteridge, ‘To create an ‘International Common Law’ consisting of rules which are
applicable to the needs of such communities as have attained the same standard of civilization.

Values and Purposes of Comparative Law

1. Better understanding of law: The most important and widely accepted objective of
comparative law is that it increases the knowledge and understanding of a person of the law
and legal system of his own country. By comparing the legal rules of his own country with
other systems of law, it is possible for him to evaluate the principles of his own country’s legal
system and thereby to understand them clearly.
2. Aid to the legislature and other law-reform agencies: Comparative law helps the legislature
and other agencies in the process of making social and legal reforms in the interest of their
people and society by enacting new laws and modifying and repealing current laws.
3. Help to Courts of law: Comparative law is useful for solution of cases which cannot possibly
be decided by a court in the absence of local law. It fills up the gap left by the statute or judicial
precedent by providing an answer to a problem with reference to the established practices of a
foreign country.
4. Help to practicing lawyers: Comparative law is of great practical utility to the lawyers in the
pursuit of their legal profession. A lawyer, with his busy programs in his profession, finds little
time in the study of the laws of other countries. But if he does so, he is greatly profited in his
professional career and for winning the case of his client.
5. Utility in foreign trade and economic relations: The utility of comparative law has been
recognized in truth in the field of international trade and commerce. The activities of persons
in establishing international contracts, particularly in the sphere of mercantile relations, are
increasing day by day. With the introduction of liberalization and globalization policy in most
the countries of the world, it has become essential for the businessmen, traders, corporations,
and merchants doing foreign trade to keep themselves in touch with the laws of the country
with which they deal.

Weaknesses of Comparative Law

1. Difficult Process: The process of comparison is a very difficult process. It requires special
kind of aptitude, training and qualifications.
2. Non-availability of materials: The structure of comparative law is built on the matters of law
and legal institutions of the countries to be compared with. It is, therefore, essential for a
comparative scholar to have the information and knowledge of the sources from where he can
procure those rules in detailed form. It may not be difficult for him to obtain the rules of his

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domestic laws, but the collection of foreign rules in authoritative form of judicial precedents,
customs and opinions of the experts.
3. Lack of experts: The work of comparison can only be done by those people, who are experts
in the field under study. It is not an easy job, nor within the reach of an ordinary person. It not
only requires knowledge and understanding of foreign law under investigation, but an
approach, aptitude, learning and training, which everyone cannot possess.
4. Language difficulty: Another reason, which has made comparative study a difficult process,
is the problem of language of its own, both in speech as well as in writing. Except in few cases,
the rules of law in all the countries have been made, formulated and developed in their own
national and regional languages.
5. Differences in words and actions of law: Another serious problem in the process of
comparative law is the difference between the published words of law and the law in action.
The student of comparative law is sure to be handicapped in the results of his comparison, if
he borrows the materials only from books and other sources, and does not consider the practices
of law of the countries under comparison.
6. No standard technique of comparison: The most ostensible weakness of comparative law is
that it does not provide any standardized technique in its process. The scope and the field of
activity of comparative law are too wide to cover many aspects, methodology and problems.
7. Misleading results: Comparative law has an important vice to give misleading results because
of varied social, economic, political and legal conditions in the countries under study. The
comparative lawyer cannot always look into the internal situation of a foreign country. His task
is only to compare the contents of law, as available. It is not possible for him to see from a
distance the background of the rules of law in a foreign country under comparison.

Criteria of Grouping of Legal Systems into Legal Family

In simple meaning, a criterion refers to the essentials or requirements or minimum qualifications or
elements. Criteria is a term used by Joseph Raz to define a legal system. These criteria for the
classification help in explaining and describing similarities and differences between the legal
systems/legal families. The grouping of legal system into traditions and families is not stable.
While fascinating as it is, constant and more fundamental elements are preferable to consider rather
than less stable rules found in the law at any given moment. The doctrine of legal families seeks to
establish common groups, identifying similar legal practices, activities and subject matter and thereby
classifying the entirety of global legal transactions and activities into ‘families’ according to particular
criteria. Classification of laws or grouping of legal system into legal families should not be made on
the basis of similarity or dissimilarity of any particular legal rules. Rules may be infinitely various, but
the techniques of their enunciation, the way in which they are classified, the methods of reasoning in
their interpretation are of limited number of types. It is possible to group laws into legal families and
to compare and contrast them when they adopt or reject common principles as to substance, technique
or form. Each approach of classification can undoubtedly be justified from the point of view of the
person proposing it and none can, in the end, be recognized as exclusive.

According to Michael Bogdan, the following are the factors to classify the legal system and these
factors are not independent of each other, must be seen as interrelated;
(i) Economic System
(ii) Political System
(iii) Religion
(iv) History and Geography
(v) Demographic Factors
(vi) Co-influence of other means of control
(vii) Accidental and unknown factors
On the basis of those factors, Michael Bogdan has classified the legal system into following;
(i) English Law
(ii) American Law
(iii) German Law
(iv) French Law
(v) Socialist Law

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(vi) Chinese Law
(vii) Muslim Law

Rene David & E.C. Brierley’s Two Criterions

(i) Technical Standpoint
(ii) Philosophical Standpoint
Technical Standpoint: From the technical standpoint, it is advisable to ask whether someone educated
in the study and practice of one law will then be capable, without much difficulty, of handling another.
If not, it may be conducted that the two laws do not belong to the same family. Reason may be
differences in the vocabularies of the two laws (they do not express the same concepts) or because the
hierarchy of the sources and the methods of each law differs to a considerable degree.
Philosophical Standpoint: Social objectives are to be achieved by means of legal system or the place
of law itself within the social order. Though very essential, the first criterion is however insufficient
and should be complemented by second consideration. Two laws cannot be considered as belonging
to the same legal family, even though they employ the same concepts and techniques, if they are
founded on opposed philosophical, political, or economic principles, and if they seek to achieve two
entirely different types of society.

Every legal system must provide a solution of the first two criteria since existence and identity are a
necessary part for any adequate definition of the legal system. But the latter two criteria are not
common to all legal system. A legal system exists only if it reaches a certain minimum degree of
efficacy.
Efficacy can be manifested by the obedience to the norms and sanctions. The criteria of identity of the
legal system answers the question which laws form a given system. For this, it offers criteria of
membership of principle of origin.

Criteria for Grouping Legal System (Joseph Raz)

a. Existence: Existence criteria of Joseph Raz are related to minimum degree of efficacy.
Obedience, validity, continuity and binding are equally important to analyze the existence
criteria of legal system. Only enactment of law cannot be criteria of existence. To become
existence, it must have minimum level of efficacy.
b. Identity: Identity can also be known with the investigation of material unity. The identity
criterion of legal system is measured through membership character which reflects primary law
applying organ like police force, military force, courts, and law recognizing organ. It has the
reflection of scope, continuity and compulsion. It should not be evaluated only on the basis of
origin or source of law as Austin and Kelson said. The enactment of law has little value than
the enforcement of law. Enforcement of law is done by primary law applying organ and
recognizing organ. If they apply it, identity character of law is depicted.
c. Structure: Every legal system does not have similar structure of law. We can find similarity
only in the nature of expression of duty imposing and power conferring norms. Each and every
legal system consist of it. However, power regulating and punitive norms or legal system can
also be important structure of norms. Joseph Raz has highlighted on principle of
individualization which tries to distinguish the basic feature of same norms or rule used in law
despite their similarity. To analyze the relationship of nature of law and analysis of legal
system, individualization of norms in variety of form is necessary, which depicts the structure
of legal system.
d. Content: Raz has said very little about the structure of content in legal system. Content is the
substantive part of structure which is expressed as per objective of legal system. Political
system of given nation determines the criteria of content. It is also normative in expression
which guides human behavior. It is established from social fact and basically expressed in
written format.

Classification of Comparative Law

(A) Prof. Lambert’s Classification
Prof. Lambert’s classifies comparative law under three heads; (i) Descriptive, (ii) Legal
History, (iii) Legislation.

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Descriptive Comparative Law is the inventory of the systems of law of the past and recent as
a whole as well as of the individual rules with these systems, established for the several
categories of legal relations. It lays down the differences between the laws of two or more legal
systems.
Comparative Legal History seeks to bring out, by the establishment of a universal history of
law, the rhythms or natural laws of the succession of social phenomena, which direct the
evolution of legal institution.
Comparative Legislation or Comparative Jurisprudence tries to describe the common trunk
on which the recent national doctrines of law are destined to graft themselves as a result both
of the development of the study of law and of the awakening of an international legal
consciousness.
(B) Wigmore’s Classification
Wigmore divides comparative law under three heads; (i) Nomoscopy, (ii) Nomothetics, and
(iii)Nomigenetics.
Comparative Nomoscopy ascertains and describes other systems of law as facts. It is
concerned with the formal descriptive of law in the different legal systems.
Comparative Nomothetics seeks to ascertain ‘the politics and relative merits’ of different
institutions with a view to amend the laws. In other words, it makes the assessment of the
relative merits of the rules under comparison.
Comparative Nomogenetics traces the evolution of various systems in their relation to another
in chronology and causes. In other words, it is concerned with the study of the development of
systems of law in relation to one another.
(C) Kaden’s Classification
Kaden classifies Comparative law as; (i) Formal, and (ii) Dogmatic.
Formal comparison (Formelle Rechtsver Gleichung) denotes the comparative investigation
of the law, e.g., the weight given in different systems to statute law, case-law and custom and
the application of differing methods of legal technique in such respects as the interpretation of
statutes.
Dogmatic comparison (Dogmatische Rechtsvergleichung) is concerned with different
solutions of a problem in different systems of law. This method ascertains the application of
the results of comparison in the legal problem of a country.
(D) Kantorowicz’s Classification
He classifies comparative law as follows; (i) Geographical, (ii) Material, and (iii)
Methodological.
Geographical Comparative Law implies the parallel investigation of the general structure of
the law in several systems.
Material Comparative Law is the comparative investigation of the rules relating to a given
subject-matters.
Methodological Comparative Law is that for the process, which is not purely analytical, but
leads to a systematic view of the subject-matter.
(E) Max Rheinstein’s Classification
Rheinstein has given two classifications; (i) Macro-comparison, and (ii) Micro-comparison.
Macro-comparison, “is concerned with comparison of entire legal systems, such as; Anglo-
American Common Law and the so-called Civil Law or within the Civil Law, the family of so-
called Romanist Law, i.e., based on French and German.”
Micro-comparison is concerned with the detailed legal rules and institutions of two or more
legal systems.
(F) Gutteridge’s Classification
Gutteridge classifies comparative law under two heads; (i) Descriptive, and (ii) Applied.
Descriptive comparative law is concerned with the description of different legal facts as
found in different countries. It is not in any way concerned with the result of any comparison.
The main function of descriptive comparative law is to state only the divergences between the
two or more systems to an individual legal problem.
Applied comparative law is concerned with the examination of the legal facts with the
purpose of obtaining the results. It is worth of being dignified as a legal research, because it

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lays down the conclusions, drawn from the comparison of different legal facts after making
proper analysis and careful study.
(G) Institutional and Functional Comparison
The uncertainty in the nature and scope of comparative law is so serious that more classification
can be added in its study. Considering the activities of comparative law and its field of the
study, the subject within its scope is said to have undertaken into two forms – one studying and
comparing the institutions of two or more legal systems, known as institutional comparison
and other functional comparison which is concerned with the comparison of the detail rules,
i.e., the functions of law and its institutions.

Methods of Comparative Law

Approaches refers to a way of dealing with a particular topic or situation. Likewise, method is a
particular procedure for approaching something especially a systematic or established on.
Here, methods of comparative law are the process through which legal system of different countries
are compared and studied. Methods of comparative law brings to bear new thinking in various topics
like relationship between law and space, approaches to legal decision making and so on. Together the
comparatist revalues the scientific understanding of comparative methodologies in the field of law in
order to provide critical insights into traditional literature and an original overview over recent trends.
Hence, comparatists over world still view their methods at experimental stages so there is lack of
systematic writing concerning methods of comparative law. However, here are some steps of methods
of comparative law;
1. Research Questions/Hypothesis
2. Functionality
3. Imagination and Discipline
4. Question of Selection
5. Preparation of Preliminary Report
6. Framework of System
7. Evaluation
Research Questions/Hypothesis: Every investigation in comparative law begins with an idea in the
forms of hypothesis. There are certain assumptions made on a topic at first and then other steps are
carried out. For example, before studying the court system of Nepal and India a hypothesis that their
court system may be same is made and then further steps are carried.
Functionality: In law, only those things can be compared which fulfills the same functions that is
incomparable things cannot be compared. It is basis methodological principle. From functionality only
the methods (rules by which the choice of law to be compared is determined, scope of undertaking,
creation of system of comparative law proceeds, so it is the foundation.
Imagination and Discipline: These qualities are essential to find in a foreign system, the rules
functionally equivalent to domestic rules. For e.g., the questions of how to enable persons incapable
of acting for themselves like minors, insane to participate in legal affairs. In the common law trustee
have duties towards child’s property but on the Continent this duty is performed by statutory
representative. This example shows for a Continental lawyer what seems to be a single problem and
solution in a single institution is seen by the Common lawyer as being bundle of specific problem is
solved with plurality of legal institutions.
Question of Selection: A comparatist should go as deep as possible into legal system he chooses to
compare but there is also a relevant question that which legal system should be chosen to compare.
For instant if somebody wants to include Romanistic system in the comparative study he must include
Italy in addition to France the parent system of Romanistic law. Same way a contemporary comparatist
cannot focus only on the law of England and ignore North America, though, England is the parent
system of common law. Therefore, it will be inaccurate to draw only on English Law excluding the
American Law.
Preparation of Preliminary Report: When the legal systems are chosen for comparison the real
process of comparison does not start until the reports on legal system are completed. Separate reports
should be prepared for each legal system or family of legal systems. They must be without any biased
critical evaluation i.e. must be fair enough.
Framework of System: The system of comparative law must design a basic category or a format
which includes form, causes and consideration by which legal system can be distinguished. A special

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syntax i.e. sentence structure, grammars and vocabulary must be developed by comparatist. The
system made must be very flexible with concept large enough to cover comparable legal system. The
system produced by the comparatist must be functionally coherent because law in all legal system with
similar socio-economic condition are similar, no matter how much they differ technically.
Evaluation: The final step for comparative research study is evaluation. After completing the study,
a comparatist must critically evaluate his findings, in evaluating he should not be blinded by faith in
the superiority of his own system because a comparatist must evaluate on the basis of the facts not on
the basis of his beliefs. During the entire process among the findings some of the solutions may appear
better or even worst or it may be found that solutions are equally valid, in such case it is difficult to
make a choice however, the comparatist finally must design a new solution superior to all other
solutions out of the parts of the different national solutions.

Cruz (1999) has formulated the following eight-point methods of comparison:

1. Step One: identify the problem and state it as precisely as possible.
2. Step Two: assuming that the ‘home’ jurisdiction is one of the jurisdictions being compared, identify
the foreign jurisdiction and if possible, the parent legal family in which it belongs following the usual
criteria, sources, model of legal thought, ‘ideology’ etc.
3. Step Three: decide which primary source of law are going to be needed or, which materials are
available?
4. Step Four: gather and assemble the material relevant to the jurisdiction that includes primary and
secondary sources of law.
5. Step Five: organize the material in accordance with headings reflecting the legal philosophy and
ideology of the legal system being investigated.
6. Step Six: tentatively map out the possible answers to the problem through comparative approach
bearing in mind possible cultural differences or socio-economic factors, reason, customs etc.
7. Step Seven: critically analyze the legal principles in terms of intrinsic meaning.
8. Step Eight: set out our conclusions within a comparative frame work with caveats, if necessary,
and with critical commentary, wherever relevant, and relate it to the original purpose of your inquiry.

EDWARD J. EBERLE: “THE METHOD AND ROLE OF COMPARATIVE LAW”

Step 1: The Skills of a Comparatist
Step 2: Evaluating External Law, As Written or Stated
Step 3: Evaluating Internal Law
Step 4: Determining Comparative Observations

Factors, Theories and Criteria of Grouping of Legal Systems into Legal Family

Comparison Between Legal Family

Comparison of legal families is not mere concern of today’s legal system. This is a regular process
which is being continued since many centuries back. In the medieval period, British ruler tried to make
a strong and competent law and they applied comparative study of Roman Law and Canon Law. In
other hand, particularly in Europe they started teaching foreign law in their University. Apart from
that, Napoleon Code itself is a result of comparative study of National Law with ancient Roman Law.
So, they sometime used to say it “Comparative Legislation”.
Establishment of foreign law offices in France at 1879, first convention of International Comparative
Law Congress at 1900 in London and recent development of European Union Parliament and Court
also playing a vital role to promote comparative study of legal families. This kind of comparison helps
to update particular system or area of legal family or National Law. It also helps to reform restructure
of law as required.
There are two aspects of comparing; Similarities and Dissimilarities or Uniqueness.

Similarities of Legal Family

Objective: The main objective of any legal family is concretely manifested to the establishment of
just society. Each system in fact constitutes a system, it has a vocabulary used to express concept, its
rules are arranged into categories, it has techniques for expressing rule and interpreting them, it is

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linked to the view of the social order itself which determines the way in which the law is applied and
shapes the very function of the law in that society.
Authority: In this modern age, law is defining only through the positive law and we are also prone to
think that only positive law is a reality. It should be enacted and it should be backed by sanction as
like Austin definition. Even there are exceptions for this like judge made law.
Inspiring from other family: This is common trend of all family. Every family is inspired by the
others and copying other family’s provisions as per their comfortability.
Inter-relationship: Since many centuries back, there have been numerous contacts between the
families, particularly between religious, common and civil law system. But in these recent years, all
families have tended to draw closer together.
Political Resemblance: From the socialistic point of view, common law system and civil law system
both have one similarity that both families belongs to the so called Bourgeois or Capitalist section.

Dissimilarities of Legal Family

Origin and Growth: Origin of Common Law System is based on courts practice, or having influenced
from the decision or approach of court rendered and taken in a particular cases or time. Establishment
of Royal Court by the King Henry was the first effort and this formal origin point for the system.
Civil Law System is based on the basis of scholarly effort or having developed by codified law. Since
Twelve Table to the Napoleon Code.
Origin of Socialist Law System is based on the revolution for the change on laws and institutions and
breaking away from the past. Plato was the first thinker of the ideal state then.
Origin of Religious Law System is based on the origin of society or religion. In other words, we can
say that religious family is based on the origin of ancient civilization.

Structure of Law: In civil law system, law is different to the ruler and the ruled.
Common law system, for every man whatever his rank or condition, is the subject to the ordinary law
of the realm and amendable to the jurisdiction of the ordinary courts. Here, the courts apply the law
equally to the all men.
For socialist family, law emphasizes on the common interest rather than private and public. Since
Bolshevik Revolution to the end of Soviet Union at 1900, main focus of the Socialist USSR was to
hammer the capitalist system.
For the religious family, law is order of the super eminent things and law is based on morality and
religious aspect.

Source of Law: In the civil law system, enacted law is accepted as a primary source of law, including
constitutional law, treaties, code and statutes, regulations and decrees, etc. In this system, custom
occupies a minimal place.
The common law system is typically a judge made law, or a case law. Legislation traditionally occupies
a secondary position, compared to the decision of courts and conventions.
Law is only a means to achieve ideal state for the socialist family. Their main focus is interpreting
every action of the state from economic point of view. Like this, they take economic as the foundation
of the law and jurisprudence.

Judicial Organization: In the common law system, there are general court to settle disputes of the
citizen. There is no distinction between private and public law.
The civil law system contains at least two (and some time more) separate sets of the courts for
administrative and private law matter, each with its own supreme courts, procedural and substantive
rules, and its own jurisdiction.
Socialist system has framed different structure for the judicial organization, which are ultimately
responsible for the certain political body. Separation of power does not work at all.
In religious legal family, role of court is also important, whether it will be King’s Bench of Hindu, or
Ecclesiastical Court of Christian or Religious Court of Muslim.

Legal Education: Civil law education is undergraduate university education. It is in the hands of
university. The difference between legal education in common law and civil law systems appears in
the manner in which the student is initiated into the study of law.

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There are multi-disciplinary institutions for the professional training in common law country. The
university serves the secondary role. Qualification to practice law either as a barrister or solicitor has
never required a university legal education.
In the religious family, they also have their own type of legal education. For e.g., in Hindu, University
of Magadh.

Legal Profession: Law students in civil law country need further practical training to enter a legal
profession after taking their general university education. The type and duration of such training varies
from country to country. There is generally a special examination and practical internship to enter
private practices.
In English law, there is a category between barrister and solicitor. Solicitors prepare documents as a
clerk of barrister. The barrister does the work of advocacy in the higher court.
In Socialist system, lawyers are not a professional one. They have to work in collaboration with Judge
and prosecutor.

Legal Process: Basically, in all family, legal process comprises of civil procedure, criminal procedure,
and constitutional procedure.
In civil law system, civil procedure occupies the same central position in procedural law that it
occupies within substantive law. The basic source of law in this area is a code of civil procedure.
In criminal cases, civil law system is inquisitorial while common law system is adversarial.

Problems of Studying Foreign Law

1. Assumptions of Similarities
• While studying two or more than two foreign legal system, we presume that legal concepts,
institutions, and procedure of national legal system also exist in foreign legal system. Such
assumption is often wrong.
• To study foreign law, one must come out from the native legal system.
• Native legal education determines the way of thinking, attitudes and approaching a legal
problem.
2. Access to Reliable Sources of Information
• Access of reliable sources of information is a fundamental prerequisite of every study of
foreign law. Primary sources i.e. official sources such as statutes, regulation, law reports, etc.,
is considered best for the study of foreign law.
• But it is very hard to get primary source of information so, using secondary sources of law
like text books, reference books, manuals articles, etc., may also be useful while doing
comparative study.
• While studying foreign, it is an elementary requirement that the legal materials being studied
must be latest.
• Due to the development of science and technology now a days it is possible to get current
information electronically.
3. Interpretation and Use of Sources
• If a comparatist wants accurate information of the foreign legal system, he must use all the
foreign legal materials like legislation, judicial decision and preparatory materials before
enactment of law. These materials must be used in the same manner as they are used in their
country of origin. But generally, this rule is violated in the process of comparison.
• For the perfect comparison, foreign law must be interpreted as they are interpreted in their
country of the origin it should not be interpreted in their same manner they are interpreted in
the native legal system.
• Comparatist must respect the system and hierarchy of sources of foreign law.
4. Studies in its Entirety
• While studying a specific issue, one must study foreign legal system in its entirety. It is not
enough to investigate only a particular legal issue, because even a small part of foreign legal
system is influenced by those principles, which affect the legal system in its entirety, like
hierarch of the legal sources and principles of interpretation.

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• Hence, even while studying a part of foreign law, its interaction with other parts of the whole
legal system should not be forgotten. Because a legal system is a while composed of parts and
the parts are interdependent, interrelated and interacting.
5. Problems of Translation
• Foreign legal terms and phrases lack a directly corresponding translation
• Legal terms are often used in everyday language with different meanings e.g. the English
word ‘attempt’ has different meaning in criminal law and ordinary language.
• Even relatively common legal term cannot be translated with only one word.
• The problem can occur even in purely legal terms, which are not used in non-legal context.
• To avoid the problem of translation one must use the special bilingual dictionaries for legal
terms but for this also one needs to sufficiently know the foreign language.
6. Obsolete and Living Law
• While studying foreign law is determination of obsolete (formally continued to be valid, but
they are no longer in practice) and living law.
• For this, it is important to decide,
i. which rules of behavior in foreign legal systems have the status of legal rules,
ii. which laws are valid law and binding,
iii. which legal rules have become obsolete
• Sometime such obsolete legal rule may simply cease to be the part of living law
• Same way, when certain rules are living one should not go by judicial decisions alone but
also must look for customary legal rules.
• In context of Nepal, Social Reform Act 2033 is one of the best examples of obsolete law of
Nepal since the statutory rule of this Act is no longer applied in practice.
7. Social Context and Purpose of Law
• Legal system is a part social system. It cannot be studied in isolation from other aspects of
social system.
• To understand the legal system, one has to understand its non-legal external environment and
their social purposes. Without understanding the non-legal environment, it is impossible to
understand the foreign law.
• Another important thing to know, when studying foreign law is the prevailing attitude of
peoples toward the legal systems.
• Thus, the study of non-legal aspects of legal system is important not only to understand, how
certain legal rules function, but also to understand how an alien society manage problems even
in the absence legal rules.

Nature and Position of Comparative Law in the Era of Globalization

Nature of Comparative Law
• Working with the ascertained similarities and differences
• Explaining their origin
• Evaluating the solutions used in the different legal systems
• Grouping the legal systems into families of law i.e. searching the common core of the legal
systems
• Treatment of methodological problems including the problems related to the study of foreign
law encountered in the process of comparing legal systems

Position of Comparative Law in the Era of Globalization

• Comparative law has undergone number of phases. In earlier phase, comparative law was
necessity as different legal systems met each other or coexisted within a country.
• Later, it was a study of foreign legal system in order to enhance international relation.
Gradually, it has been recognized that the study of foreign legal systems.
• Comparative law is a very important discipline in communication between legal systems.
• The importance of comparative law has increased tremendously in the recent times because of
globalization and democracy
• It provides fresh insights by which native legal systems can better understood, their weakness
can be detected and their strength can be increased.
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• Comparative law and its method are considered as one of the ways of resolving the new types
of problems, arising due to perpetual changes in society and technology such as cyber-crime,
organized crime, white color crime, etc.
• It is also applied in the harmonization and unification of laws, and the interpretation of the
existing law.
• It helps in fostering international relations and also in shaping foreign policies.
• It helps the government and jurist to get a better idea about the working of the other country
which proves to be helpful in many ways, such as;
a. Understand our own culture (when comparing with others),
b. Helpful at the time of amending laws,
c. During the times of international trade etc.
• 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.
• Comparative law helps in enacting new legislation, new precedent, recommending law reform.
• Comparative law has significant value in better understanding of public and private
international law.
• Comparative law is crucial in understanding trade laws.
• A comparative study has significant nature that it allows students and professionals to explore
the inner structure of any legal system and further allows them to develop new laws and policies
in a better manner by analyzing the existing legal structures of other nations and culture.
• Comparative law is necessary to acquire basic knowledge of different legal system. It is a
subject, which does not concern to a particular part of legal system for e.g. civil law, criminal
law etc.
• Comparative law is legal science concerning itself with the systematic whole of the entire legal
system having international boundaries.
• Thus, the importance of comparative law has increased enormously in the present age of
internationalism, globalization and democracy.

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Unit 2: Major Legal Systems
Common Law System
Concept of Common Law
Development of Common Law
Sources of Common Law
Concept of English Law
Sources of English Law
Concept of American Law
Sources of American Law
Civil Law System
Concept of Civil Law
Development of Civil Law
Sources of Civil Law
Concept of Roman Law
Development of Roman Law
Sources of Roman Law
Court Structure under Roman Law
Legal Profession under Roman Law
Concept of French Law
Development of French Law
Sources of French Law
Court Structure under French Law
Legal Profession under French Law
Concept of German Law
Development of German Law
Sources of German Law
Court Structure under German Law
Legal Profession under German Law
Socialist Legal System
Concept of Socialist Legal System
Development of Socialist Legal System
Sources of Socialist Legal System
Characteristics of Socialist Legal System
Religious Legal System
Muslim Law
Concept of Muslim Law
Sources of Muslim Law
Schools of Muslim Law
Hindu Law
Concept of Hindu Law
Sources of Hindu Law
Schools of Hindu Law

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Unit 3: Modern Laws of the South East Asia
Chinese Law
Concept of Chinese Law
Court Structure of Chinese Law
Legal Profession of Chinese Law
Japanese Law
Concept of Japanese Law
Court Structure of Japanese Law
Legal Profession of Japanese Law
Indian Law
Concept of Indian Law
Court Structure of Indian Law
Legal Profession of Indian Law

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