Maharashtra National Law University, Mumbai

Comparative Method of Research in Legal Field

Final Project

Submitted by

Manan Goenka

Enrollment Number: 2015056

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Table of Contents

Introduction....3

What is Comparative Legal Research?............................................... 4

Uses and Functions of Comparative Law.... 5

International Legal Integration 7

How is Comparative Legal Research Done?....................................... 8

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 Introduction

Research in the legal field is one of the most important tools that a lawyer practicing in
any way can have at his/her disposal. Comparative method of research in legal field,
more commonly known as comparative law, in simple words involves comparing laws of
different countries, culture, religions, times, fields in order to gain a more wholesome and
universal understanding of the issue in question and reach a conclusion as to which law is
the most appropriate and how these different laws have been applied differently and the
results of said application in different places, times, religions, cultures, etc.

One larger objective of comparative research is international integration in the legal field
through formation of universally accepted international laws. This is possible only when
a common consensus is reached throughout the world; however such an aim has not been
reached as of today and is not easy to reach because of the difference in cultures and
societal practices across the world. Globalization is slowly bridging the gaps and
someday, we can hope to see a world with internationally accepted laws applied
throughout the world which would in turn, integrate and unite the world.

Various organizations and institutions with the aim of attaining international legal
integration and facilitating comparative legal research are working towards this goal and
have established themselves as pioneers in the field. Some of the most popular
institutions include The Australian Institute of Comparative Legal Systems 1 and The
International Academy of Comparative Law2.

The objectives of this project are to explore how and why comparative research is done,
its merits and demerits and find out more about the concept of international legal
integration and how it is to be achieved.

1 www.ausicl.com (The Australian Institute of Comparative Legal Systems)

2 http://iuscomparatum.info/ (The International Academy of Comparative Law)

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 What is Comparative Legal Research?

As W.J. Kamba has written, The method of comparison is an integral part of human
thinking and knowing. Constantly it is employed, in varying degrees, in all areas of
human endeavor.3 A plethora of ideas, practices and inventions in human history have
come to this realm to the credit of the method of comparison that we, as humans have
been known to use.
Comparative research is such a method of research in the legal area that involves
applying said comparative method to study, compare and learn about different legal
systems or different specific laws, or parts of laws of different legal systems. The results
of such research and its uses are plentiful and they shall be discussed, along with the
methods merits and demerits, later in this project.
The question, Is comparative law a science? is a topic of debate among many legal
scholars and lawyers. One such scholar Rheinstein has said:

Comparative law in that sense is the observational and exactitude-seeking

Science of law in general . . . it endeavors to collect, observe, analyze, and classify them
and, like other sciences in the narrow sense of the Word, it searches for typical
collocations, coincidences, and sequences, or, in other words, for "laws "-... laws of the
kind of Newton's laws of gravitation or Gresham's law in economics . . . laws . . . in
which the word is understood in modern natural science4

3 W. J. Kamba, Comparative Law: A Theoretical Framework, The International and

Comparative Law Quarterly, Vol. 23, No. 3 (Jul., 1974), 486

4 Rheinstein, "Teaching Tools in Comparative Law" (1952) 1 Am.J.Comp.L.

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 Here, he describes comparative law as a subject involving scientific method, just like any
other science. Kamba has noted, It should be emphasised that comparative law is the
systematic application of comparison to law.5

Uses and Functions of Comparative Law

Historically, the comparative method of research has not been given much importance
and its utility has not been appreciated. It has been viewed as mere time-pass and not a
field of dire importance.

Today however, the legal world realizes and appreciates the need for comparative legal
research, its functions and uses. In fact, comparative law became a fad and according to
Kahn Freund, it has been misused6
He says:

I am most anxious to emphasise at the outset that none of my remarks this afternoon will
in the least be a criticism of comparative law as an academic discipline. I welcome
without reservation the growth of comparative law research and the increasing
significance .. I do not intend to cast the slightest doubt on the utility of this
development.. What are the uses and what are the misuses of foreign models in the
process of law making? What conditions must be fulfilled in order to make it desirable or
even to make it possible for those who prepare new legislation to avail themselves of
rules or institutions developed in foreign countries

Freund raises a very valid point: how can laws developed and applied in a different
country with a different culture be legislated in another country? Laws are different in
5 W. J. Kamba, Comparative Law: A Theoretical Framework, The International and
Comparative Law Quarterly, Vol. 23, No. 3 (Jul., 1974), 486

6 On Uses and Misuses of Comparative Law Author: O. Kahn-Freund, The Modern Law
Review, Vol. 37, No. 1 (Jan., 1974), 1-27

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 different countries due to that very reason and this is a paradox that has been plaguing
comparative law. This cannot be answered by a mere article but can be, and is being
further discussed through international forums and organizations working for this very
purpose.

Maine, regarded as the founder of comparative law, has said, The chief function of
comparative jurisprudence is to facilitate legislation and the practical improvement of the
law.7

There has been a historical discussion about the different functions of the comparative
method of legal research. Scholars such Gutteridge have made their contributions to the
discussion. The uses and functions of comparative law have been conveniently summed
up by Kamba as follows:

(1) Academic Studies.

(2) Legislation and Law Reform.
(3) The Judicial Process.
(4) Unification and Harmonisation.
(5) International Law.
(6) International Understanding.8

7 Maine, Village Communities, (1871), 4.

8 W. J. Kamba, Comparative Law: A Theoretical Framework, The International and

Comparative Law Quarterly, Vol. 23, No. 3 (Jul., 1974), 490

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 International Legal Integration

The basic aim behind international legal integration/unification is the idea that through
the comparative method of research in the legal field and its application and
implementation throughout the world so as to develop and put forward international laws
that are universally accepted among all countries, we will live in a world with one body
of legal rules to control human behavior uniformly throughout the world.
This will therefore, unite the world and will be one step closer to solving many of the
existing international problems. Hall has said:
The differences among human beings often dissolve in the discovery of their basic
similarities and, in any case, they become intelligible when viewed in the context of a
known pattern. Limited as we are, we begin with self-knowledge and self-love, and when
we discover ourselves in ever-widening dimensions of common experience, friendship
and affection increase. This is the underlying emotional basis of comparative study in law
and social science...9

Though international laws do exist at present, they are not properly implemented
universally and their area of work is limited to international disputes, treaties, etc.

At the 1900 International Congress of Comparative Law, Lambert said that the purpose of
comparative law is to make a general unified law that would be applicable throughout the
world through material obtained through comparative research.
9 Hall, Comparative Law and Social Theory (Baton Rouge, 1963,3.

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 Kamba stresses that The underlying assumption was the belief in the existence of basic
elements-principles, concepts, and institutions-common to all "civilized" systems of law
and that these could be ascertained by the use of comparative law.10

How is Comparative Legal Research Done?

Comparative Law simply does not mean comparing and contrasting laws of two different
countries. Rather, it involves comparing two different legal systems, be it of different
countries, different religions, or different times in the same country. Thus, laws that have
been amended, repealed or changed also lie in the subject matter of comparative research
and it is important to know exactly why they were changed or repealed.

The type of research can be divided into two, as Rheinstein has suggested: micro-
comparison and macro-comparison. Macro-comparison involves comparing two whole
different legal systems with each other, like comparing the whole legal system of
countries, or of different years. Micro-comparison involves comparing small parts or
topics from two different legal systems, for example, comparing the rape laws in different
legal systems of two countries.
Kamba states some topics that might be concerned with micro-comparison:
(a) The various characteristics of a legal system: the structure, the sources of law,
judicial systems and the judiciary, the legal profession and so on;
(b) The various branches of national law;
(c) Institutions or concepts;
(d) The historical development of legal systems.11

10 W. J. Kamba, Comparative Law: A Theoretical Framework, The International and

Comparative Law Quarterly, Vol. 23, No. 3 (Jul., 1974), 502

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 The comparison to be made should be made to equivalent areas for example, sedition law
in India compared to its Iranian equivalent or counterpart. More the difference and gap in
the laws to be compared, harder it is to determine equivalence. Thus, the parts of law to
be compared should in some way have some similarity through equivalence.

It is very difficult to develop a one shot formula for performing comparative legal
research and therefore, such research must be done on a case-to-case basis, employing
comparative methods chosen from judgments made by examining the research question
in hand or the law or issue to be compared.

One factor due to which the method of comparison varies is the difference in culture,
society of the legal systems to be compared. Therefore, the technique used for comparing
legal systems with similar societal backgrounds will be vastly different from the methods
used to compare legal systems with varied societal backgrounds and culture differences.
Therefore, as aforementioned, individual judgment must be used to devise an accurate
method to compare the legal systems in question.

Kamba states that there are three stages involved in comparative law.
The first may be called the descriptive phase. This may take the form of a description of
the norms, concepts and institutions of the systems concerned or it may consist in the
examination of the socio-economic problems and the legal solutions provided by the
systems in question. The second stage may, for convenience, be described as the
identification phase and is concerned with the identification or discernment of differences
and similarities between the systems under comparative consideration. The third stage is
the explanatory phase under which the divergences and resemblances are accounted
for.12

11 W. J. Kamba, Comparative Law: A Theoretical Framework, The International and

Comparative Law Quarterly, Vol. 23, No. 3 (Jul., 1974), 509

12 W. J. Kamba, Comparative Law: A Theoretical Framework, The International and

Comparative Law Quarterly, Vol. 23, No. 3 (Jul., 1974), 511

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 All three stages are important in order to perform a systematic comparative study of two
legal systems and they need not be in the same order or interdependent.

This is an attempt by Kamba to divide the comparative legal research process into three
for the convenience of readers and to provide simplicity and a rough path to follow for
students or people interested in comparative law. Again, this need not be strictly adhered
to and is just a rough framework provided to simplify the understanding of the process.
A person conducting comparative research on his/her own would naturally follow the
mentioned steps and therefore, in all practicality, they are irrelevant and are just for the
understanding of readers.
That being said, I in no way emphasize that this is the only way to study and compare
laws for the mentioned method may or may not be relevant, effective or appropriate for a
specific topic of question. There might be inadequacies that would have to be dealt with
on a case-to-case basis as already mentioned.

In conclusion, the comparison should be done keeping in mind the different social
contexts at the time the laws were made, societal differences, norms and political history
and influences on the legislature and amendment of laws or legal systems. All of these
and more account for, and are essential in order to really understand comparative law and
to come up with innovative ideas and solutions through this area of research.

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