SAKTHI SAI LAW ACADEMY

UGC NET LAW UNIT – X: COMPARATIVE PUBLIC LAW AND SYSTEMS OF GOVERNANCE

Topic -1 Comparative Law – Relevance, methodology, problems and concerns in Comparison

 1.1 Meaning and Concept of Comparative Law

• Comparative Law is not a separate branch of law, but a method of studying and comparing different legal systems.
• German term: Rechtsvergleichung – meaning “comparison of laws”.
• French: Droit Comparé.

 Types of Comparison:

• Macro-comparison → compares entire legal systems.
• Micro-comparison → compares specific institutions or legal problems.

 Goes beyond mere study of foreign law; requires:

• Knowledge of foreign law, and
• Viewing it from the perspective of one’s own legal system.

 Purposes:

• Aid law-making
• Assist judges
• Promote legal unification/harmonisation
• Improve legal education & awareness

 Described as “Cinderella of Legal Sciences”.

Scholars:

• H.C. Gutteridge – No strict definition; not a separate branch.
• Roscoe Pound (1936) – Depends on aim of study.
• Rheinstein – Must go beyond mere descriptive study.
• Wigmore – Vast field, no single scholar can master.
• Maine – Chief function: facilitate legislation.

 Comparative Law = special form of general legal science.

 1.2 Relevance: Comparative Public Law in Indian Context

• India does not strictly distinguish between public & private law (unlike civil law countries).
• Indian law earlier shaped mainly by socio-cultural factors; modern drafting began with British rule.

Human Rights:

• As per M.P. Singh, Indian State didn’t wield monopoly of secular power like Western states.

 Judiciary often

• Applied public law principles to private rights,
• Used doctrine of sovereign immunity.

🔹 Social Action Litigation (PIL):

• SC directed State to regulate socio-economic matters even in private domain.

 Zoroastrian Co-op Housing Society case:

• SC read Fundamental Rights vertically, not horizontally.

Globalisation:

• Private bodies performing public functions → need for comparative public law.
• Helps harmonise with international human rights standards.

Need to promote institutions like Comparative Law Institute, Pondicherry.

 1.3 Methodology of Comparative Law

• Methodology – essential for making comparative law a legal science.
• No single universal or absolute method.

Two main approaches:

functional Method – (Zweigert & Kötz)

• Law responds to social problems.
• Institutions can be compared if they perform same function (functional equivalence).
• Eg: Consideration (Common Law) vs Formal requirements (German law).
• Useful for law reform & unification.

2️. Cultural Method

• Law as expression of legal culture.
• Emphasises mentality & traditions of society.
• Opposes legal unification; promotes tolerance of diversity.

🔹 Both reject mere “black letter law” approach.

Other views:

• Patrick Glenn – No exclusive method.
• Vivian Curran – Cultural immersion needed.
• Zweigert & Kötz – Functionality is basic principle.

🔹 Uses of method:

• Descriptive
• Normative

🔹 Other techniques: classificatory, historical, functional, contextual, empirical, statistical, etc.

🔹 1.4 Problems and Concerns in Comparison

 No single method is:

• Universal
• Pan-disciplinary
• Absolute
• Objective
• Non-speculative

 Practical issues:

• Legal imperialism
• Language barriers
• Cultural differences

 Comparatist’s language & background shape interpretation
(e.g., French vs German approach).

🔹 1.5 Forms of Government

Major classification:

• Presidential
• Parliamentary

Also:

• Unitary
• Federal

1.5.1 Presidential vs Parliamentary

Presidential System

• Head: President (single executive).
• Directly elected; fixed tenure.
• Separation of powers among executive, legislature & judiciary.
• Not accountable to legislature.
• President appoints ministers.
• Example: USA, Brazil.

Strong separation & stability.

Parliamentary System

• Head: Prime Minister + Council of Ministers.
• Real executive = Cabinet.
• Collective responsibility to legislature.
• Executive accountable to Parliament.
• Can be removed by no-confidence motion.
• Flexible & cooperative system.

 Example: UK, India, Australia, Japan.

 Key Differences

Basis	Parliamentary	Presidential
Executive	Dual	Single
Accountability	To legislature	Not to legislature
Powers	Concentrated	Divided
Ministers	From legislature	May be outside
Tenure	Not fixed	Fixed
Dissolution	PM can dissolve	President cannot

1.5.2 Unitary vs Federal

 Unitary Government

• Power concentrated at centre.
• States/local bodies derive power from centre.
• Uniform laws.
• Flexible constitution.
• Example: UK, France, China, Japan.

 Centralised system.

 Federal Government

• Power divided between centre & states.
• Both autonomous in own spheres.
• Rigid constitution.

 K.C. Wheare

• Division of powers with legal independence.

 William Riker:

• Two levels of govt + autonomy + constitutional guarantee.

Example: USA, India.

UGC NET Quick Pointers

• Comparative Law = method, not subject.
• Macro vs Micro comparison.
• Functional vs Cultural methods.
• Gutteridge, Rheinstein, Maine, Zweigert & Kötz.
• India: blurred public–private divide; PIL impact.
• Presidential vs Parliamentary features.
• Unitary vs Federal – Wheare & Riker definitions.

MCQs: Comparative Law & Forms of Government

1. Comparative Law is best described as:
(A) A separate branch of substantive law
(B) A method of studying different legal systems
(C) A codified body of international law
(D) A part of constitutional law
Answer: (B)

2. The German term for Comparative Law is:
(A) Droit Compare
(B) Jurisprudence Compare
(C) Rechtsvergleichung
(D) Lex Comparativa
Answer: (C)

3. Macro-comparison in comparative law deals with:
(A) Specific legal rules
(B) Entire legal systems
(C) Case laws only
(D) Legal terminology
Answer: (B)

4. Micro-comparison focuses on:
(A) Entire constitutions
(B) Whole legal traditions
(C) Specific institutions or problems
(D) Political systems
Answer: (C)

5. Comparative Law has been described as the “Cinderella of Legal Sciences” by:
(A) Roscoe Pound
(B) H.C. Gutteridge
(C) Wigmore
(D) Rheinstein
Answer: (B)

6. According to Rheinstein, comparative law should go beyond:
(A) Historical study
(B) Cultural study
(C) Descriptive observation of foreign law
(D) Constitutional analysis
Answer: (C)

7. Maine stated that the chief function of comparative jurisprudence is to:
(A) Promote legal education
(B) Facilitate legislation
(C) Develop international law
(D) Study history of law
Answer: (B)

8. Functional method of comparative law was popularised by:
(A) Wigmore and Pound
(B) Rheinstein and Rabel
(C) Zweigert and Kötz
(D) Pollock and Bryce
Answer: (C)

9. Cultural comparison in comparative law mainly emphasizes:
(A) Legal rules
(B) Legal procedures
(C) Legal culture and mentality
(D) Codification of law
Answer: (C)

10. In India, the distinction between public law and private law is:
(A) Very strict
(B) Completely absent
(C) Not strictly maintained
(D) Constitutionally prohibited
Answer: (C)