INTRODUCTION TO COMPARATIVE PUBLIC LAW

The concept of public law generally deals with laws between the state members and their government, or matters that specifically are of public interest, which includes constitutional law, administrative law, tax law and criminal law, as well as all procedural law. 

It is a part of civil law that deals with the constitution and the working of the state, the functioning of its various departments and the relationship between states and its citizens.

The comparison between these laws with the legal systems of other nations, make up the basis for comparative public law. It started in Paris during 1900, the year of world exhibition and can be traced back to Greece and the royal empire. Plato compared laws of Greek states in order to make an ideal constitution. Aristotle examined the constitutions of 153 states. Theophastrus also used comparative method to discover the main principles of various legal systems .

WHAT IS COMPARATIVE PUBLIC LAW

 Comparative public law It is that discipline that investigates problems of public law by use of comparative method. 

 It is the study of differences and similarities between laws of different countries and legal systems existing in the world, they may include common law, civil law, socialist law, canon law, Jewish law, Islamic law, Hindu law and Chinese law .

 It is an academic discipline that involves the study of legal systems including constitutive elements and how they differ and also how these elements combine into a system.

 It is that branch which also deals with the examination of the contents of different legal systems for their answers to the solutions of different legal problems .

 It is a technique by which certain ends can be achieved by looking into laws of various nations in comparison with one’s own laws, as two or more countries are compared.

Recently, scholars pursue research relating to basic issues and current developments in the areas of public international law, European Union law, and the constitutional and administrative law of individual states.

OBJECTIVE OF COMPARATIVE PUBLIC LAW

The very essence of comparative public law cannot be over emphasized, its subject matter points to the achievement of certain goals to which this comparative study of legal system was introduced, and they are:

 To concretize and clarify the often vague principles of arbitral procedure and standards.

 To help balance economic protection and concerns which currently are in position or which might arise later.

 To ensure consistency in the interpretation and application of treaties by offering a uniform interpretative method for all Treaties.

 To ensure cross-regime consistency and mitigate the negative effects of fragmentation by stressing international investment law’s commonalities with and openness towards other international regimes, such as human rights and environmental law.

 To legitimize existing arbitral jurisprudence if the solutions adopted are analogous to those of domestic courts or other international courts or tribunals.

 To suggest changes to arbitral practice in view of different, or more nuanced, solutions adopted in other public law systems .

 To attain deeper knowledge of legal systems and to perfect their dis-effects.

 To contribute to a unification of the legal system of a smaller of larger scale.

 To foster law reforms.

 To lead legal researches and the development of new and better theories.

 To constitute a tool for construction.

 Comparing one or more foreign legal system(s) with the domestic system;

 Analysing the solutions different legal systems offer for a legal problem;

 Investigating the causal relationship between legal systems;

 Contrasting the different stages of various legal systems; and

 Examining the general legal evolution.

SUBJECT MATTER OF COMPARATIVE PUBLIC LAW.

The subject matter of comparative public law deals with its scope, that is, what and what it covers and what it does not include. The main heads of discussion will be:

 Comparative constitutional law

 Comparative administrative law

 Comparative criminal law

 Comparative international laws

 Comparative Civil law

 Comparative Commercial laws

In general, comparative legal studies can be divided into two main groups: 

 Macro-level comparison 

 Micro-level comparison. 

While the former represents the comparison of two or more legal systems as a whole, the latter describes the analysis of a specific legal issue and how it is treated in two or more legal systems. Thus, if you compare the entire German and the US legal system, you do a macro-level comparison. If, on the other hand, you are interested in a juxtaposition of the ways contracts are made in the United States and Germany respectively, you would compare the two laws on a micro-level.

The macro-micro-level distinction, however, is only a cursory one. On the substantive side, the following five main groups of comparative legal studies have been distinguished:

Overall, a comparative legal study requires a balanced and thorough analysis of two or more legal systems or some aspects thereof (as opposed to just mentioning the legal situation in a foreign country) .

We shall now discuss them in the following headings as specified above.

A. COMPARATIVE CONSTITUTIONAL LAW

Constitutional law is a body of rules that provides for the structure of the government, their powers and limitations, relationship between government and citizens, rights, duties, liberties and obligation of citizens etc. It lays down the foundation of a state and it is the supreme over the ordinary laws of a land.

According to Dicey, it is the set of rules that directly or indirectly affect distribution or exercise of sovereign power of the state.

WHAT IS COMPARATIVE CONSTITUTIONAL LAW.

According to Rudolf and Schlesinger , It is a method, a way of looking at problems.

According to Levy Ullmann, “It is a branch of legal science whose object is to bring about systematically the establishment of closer relation between the legal institutions of different countries”.

Justice Stone  argues that, “Comparative constitution seeks to describe what is common and what is different in different legal systems or to seeks a common-core of all legal systems”.

Thus, comparative constitutional law is a process, a method used for studying these legal systems and for developing a more proper one by analysing cultural and political aspects of constitutionalism. It does not require any scientific enquiry nor can it be classified as a separate branch of legal study.

PURPOSE OF COMPARATIVE CONSTITUTIONAL LAW

 The Legislature. Sir Henry supports this by saying that the main purpose of a comparative study is to facilitate legislation and foster improvements in law. It provides materials based on studies in other countries for social reform of a country. The legislative agencies can take the help of laws in other countries and improve on theirs with available materials in other legal systems. In Great Britain, workmen compensation Act was preceded by an investigation of the teps taken in other countries to solve problems which were in issue.

 Understand one’s own legal system. It helps to know, understand and penetrate one’s own legal system as all laws derive validity from the constitution of their own country. In India, the Supreme court inspired by the American principles while going through the meaning of Article 19 (1)(a) “Freedom of expression” which also include  freedom of the “press” into it and also expression of “personal liberty” used in Article 21, widened and included “right to privacy”  or right to “travel abroad ” or the “dignity of individual ” or even fight to clean and healthy environment.  

 The Lawyer. It helps in arriving at a decision involving a foreign material and it aids for deciding case where local laws are not sufficient for same. 

 The Court. It is useful for the solution of cases in the absence of local laws and fills the gap left by the statute or precedence. In India, precedence is an important source of law as all courts are bound by its decision but it is not bound by its own decision as decided in Dwarika Das Shrinivas v. Sholapur Spg. And Wng. Company Ltd . This also applies to The United States.

 Foreign Trade Economics. With the recent increase on international trade, commerce and the cases involving international transaction, it becomes important to have a deepened knowledge with constitutional law principles. It fosters knowing foreign laws and applying them for trade and economic relations .  

 To realise Universal Goals. When constitutions are compared, each is analysed with their contents to establish the common good of the people and provide for better insight where its customary laws has fallen short. In most western countries, labour problems are almost the same, but through comparative study, certain `injustices believed to be incidental can be removed.

B. COMPARATIVE ADMINISTERATIVE LAW.

WHAT IS ADMINISTERATIVE LAW

Administrative law centres on the laws that govern activities of administrative agencies of the government. It is a branch of public. They are rules that concerning the administration of the executive department of the states. It deals with powers and functions of organs of administration, methods and procedures to be followed in exercise of powers and functions, methods of control of powers, legal remedies available to person whose right is infringed and day to day activities of the officials in relation to the public.

COMPARATIVE ADMINISTERATIVE LAW

As a "fitting" process, public administration cannot fulfil its function without the use of discretion. In consequence, adequate control of administrative discretion is today a matter of vital concern to the citizen affected by administrative acts. Equally vital is the community interest in preventing discretion from transgressing its legal mandate. Continental European administrative law has attempted to accomplish both these ends. Under the circumstances, comparative analysis should prove fruitful. As the pressure toward a fuller utilization of administrative power appears to be inherent in the growth of industrial organization, techniques of accommodation elaborated abroad at an earlier date have acquired a new relevance in our own quest for a solution.

One field of law that has been relatively neglected by the boom in comparison is administrative law.3 Although there have been a number of important forays into the field, particularly within the European Union (EU), comparative administrative law remains very much the ‘poor relation’4 of comparative constitutional law.

It is argued that despite its comparatively modern development, administrative law has rapidly become an important area of law and is at the heart of some of the most significant issues confronting governments and international organizations today. Furthermore, it is suggested that, contrary to conventional views, the local distinctiveness of administrative law does not preclude comparison between jurisdictions, but instead provides compelling reasons for greater attention to comparative administrative law. A number of European examples are relied on in support of this argument. 

A simple explanation for the greater development of comparative constitutional law may be the relative newness of the administrative state and therefore administrative law. Mannori and Sordi have shown that the concept of administrative power and law is a distinctly modern phenomenon, emerging in France and later Germany during the nineteenth century and not developing into a cohesive area of law in the English-speaking world until the twentieth century .

C. COMPARATIVE CRIMINAL LAW

WHAT IS CRIMINAL LAW

The state imposes legal sanctions for defined crimes committed by individuals. Criminal law is a body of specific rules regarding human conduct and behaviour which are made by political authority and apply uniformly to all classes of and are enforced by punishment and administered by the state. 

It is precisely this critical potential that may well account for the fact that the comparative study of criminal law traditionally has been neglected. In fact, if not in theory, Anglo- American criminal law continues to be regarded as an exercise of the police power of the state, where the power to police is thought to be closely related, even essential, to the very idea of sovereignty. More particularly, the police power is the modern manifestation at the state level of the deeply rooted power of the house holder (oikonomos, paterfamilias) over his household. 

In Blackstone’s memorable phrase, “public police or economy” is “the due regulation and domestic order of the kingdom: whereby the individuals of the state, like members of a well- governed family, are bound to conform their general behaviour to the rules of propriety, good neighbourhood, and good manners: and to be decent, industrious, and in offensive in their respective stations.”

PURPOSE OF COMPARATIVE CRIMINAL LAW

 For the legislator, it can be a source of possible approaches to a specific issue or even to the enterprise of criminal law reform and criminal law making in general.

 For the judge, it can suggest different solutions to tricky problems of interpretation or common- law adjudication.

 The theorist can mine the vast stock of principles and rules, of structures and categories, and of questions and answers that can be found in the world’s criminal law systems.

 the teacher, too, can draw on the positive manifestation of different, or not- so different, approaches to particular or general questions of criminal law to challenge students’ ability to comprehend, to formulate, and eventually to critically analyse black- letter rules that are all too oft en presented by judicial or, occasionally, professorial— oracles of law as the manifestations of inexorable logic or, at least, of stare decisis .

Comparative law compares the various punishments, grounds for these punishments of several legal systems. Thus, it becomes one of the subject matter of Comparative Public law.

D. COMPARATIVE INTERNATIONAL LAW

WHAT IS INTERNATIONAL LAW

International law is the set of rules generally regarded and accepted as binding in relations between states and between nations. It serves as a framework for the practice of stable and organized international relations. International law differs from state-based legal systems in that it is primarily applicable to countries rather than to private citizens. National law may become international law when treaties delegate national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court. Treaties such as the Geneva Conventions may require national law to conform to respective parts.

Much of international law is consent-based governance. This means that a state member is not obliged to abide by this type of international law, unless it has expressly consented to a particular course of conduct. 

This is an issue of state sovereignty. However, other aspects of international law are not consent-based but still are obligatory upon state and non-state actors such as customary international law and peremptory norms.

COMPARATIVE INTERNATIONAL LAW

The subject matter of comparative Public law studies International law as a means to compare the general laws of nations and the agreements between them, in comparison to others. This fosters for mutual understanding and multi-lateral agreement amongst member and non-member nations after successful study is carried out.

E. COMPARATIVE CIVIL LAW.

WHAT IS CIVIL LAW

Civil law is a branch of the law. In common law countries such as England, Wales, and the United States, the term refers to non-criminal law. The law relating to civil wrongs and quasi-contracts is part of the civil law. The law of property is embraced by civil law. Civil law can, like criminal law, be divided into substantive law and procedural law. The rights and duties of individuals amongst themselves is the primary concern of civil law. 

COMPARATIVE CIVIL LAW

It is often suggested that civil proceedings are taken for the purpose of obtaining compensation for injury, and may thus be distinguished from criminal proceedings, whose purpose is to inflict punishment. However, exemplary or punitive damages may be awarded in civil proceedings. It was also formerly possible for common informers to sue for a penalty in civil proceedings 

“The comparison of legal systems has for a long time been an essential branch of legal research and jurisprudence. It has become even more important and relevant in our era of globalization, an era in which there is no field of law that can base its knowledge exclusively on national ideas and rules of procedure. Peter Gottwald sees the comparison of legal systems leading “not only to a better knowledge of foreign law but also corresponding to the internationalization of law and jurisprudence, and the globalization of politics, of trade, commerce and private life style. ”

The general works of comparative civil procedure; basic books about the civil and common law systems; and encyclopaedias and treatises covering several jurisdictions. The remainder of the guide is arranged by country. Depending upon the country, the sources listed may be in English or in the vernacular (or both in some cases). Under “Primary Sources” are listed codes of civil procedure and civil procedure statutes and, for civil law jurisdictions, basic treatises and commentaries. Under 

“Secondary Sources” are listed monographs, treatises and commentaries (for common law jurisdictions), which may also contain the text of civil procedure code sections and statutes. The section on “Secondary Sources” also contains collected jurisprudence, as well as a few journals. In order to locate titles in particular libraries, it is advisable to search online library catalogues or, for an overall search.

F. COMPARATIVE COMMERCIAL LAW

WHAT IS COMMERCIAL LAW

Commercial law, also known as business law or corporate law, is the body of law that applies to the rights, relations, and conduct of persons and businesses engaged in commerce, merchandising, trade, and sales. It is often considered to be a branch of civil law and deals with issues of both private law and public law.

Commercial law includes within its compass such titles as principal and agent; carriage by land and sea; merchant shipping; guarantee; marine, fire, life, and accident insurance; bills of exchange and partnership. It can also be understood to regulate corporate contracts, hiring practices, and the manufacture and sales of consumer goods. Many countries have adopted civil codes that contain comprehensive statements of their commercial law .

OTHER AREAS COVERED BY COMPARATIVE LAW INCLUDES:

 Administrative organisations

 Organisational structure

 Local Administration

 Administrative system of public sectors

 Normative to empirical orientation

The study of comparative public law also involves several approaches for its comparisons, they are:

 The Analytical Approach.

The influence of Staatslehre thought lay heavily on public law in the closing decades of the nineteenth century. Law was viewed as the command of the sovereign, and sovereignty was ascribed to the state, source and enforcer of all law. Analytical scholars explored the “true nature” of the state and constructed elaborate theories of sovereignty. Analysis was formal and deductive; its main purpose was to give coherence and logical consistency to accepted legal doctrines.

 The Juridical Approach.

Although it stems from analytical jurisprudence, the juridical approach is relatively unconcerned with general abstract theories of law, government, or the state. It views law primarily as a system of concepts, rules, and principles that are supposedly the basis of legal decisions. It focuses on constitutions, statutes, judicial decisions, and related phenomena, which are described, clarified, analysed, and sometimes evaluated. Analysis emphasizes legal reasoning and probes the logic and consistency of legal decision making. Since the approach is concerned with the formal results of decision making, usually in terms of legal doctrine, it is necessarily formal; nevertheless, it can be tempered with considerable political realism.

 The Historical Approach.

Early in his career, Corwin identified his approach to public law study as primarily historical. He took the position that because law is so avowedly historical in its manner and growth, it has to be understood historically. In practically every area of the historical approach, Corwin did pioneering work, and in many of these areas his contributions remain unsurpassed.

His conception of law showed the influence of historical jurisprudence, but it differed little from the juridical conception. This has been generally true of historically oriented public law specialists, many of whom were students of Corwin’s. The principal difference between the historical and juridical approaches lays not so much in the conception of law as in the method and the universe of phenomena regarded relevant for study. The historical scholar’s forte is genetic explanation, which, at its best, is based on sound historical method—use of primary sources, critical evaluation of evidence, and conclusions drawn strictly from the evidence. If he is interested in the American constitution, he will, like the juridical scholar, study judicial opinions, but his universe of phenomena embraces much more public opinion, group activity, presidential decisions, congressional behaviour, and anything else that may account for constitutional growth.

 The Ethical Approach.

The ethical approach raises the question of justice in regard to legal rules, decisions, behaviours, and similar phenomena. It is invariably taken by those who have an ideal conception of law, e.g., the proponents of natural law, who maintain that an unjust law is no law at all. But the ethical approach can also be used by those having other conceptions of law.

 The Group-Process Approach.

Articulated initially by Arthur F. Bentley (1908), the conception of law underlying the group-process approach is that of a multitude of complexly related activities indicating the formation, systematization, struggle, and adaptation of group interests. Law, according to Bentley, does not result from government; it is the same phenomenon, “only stated from a different angle” What distinguishes legal and governmental activity from all other activity is its connection with governmental agencies. “The law at bottom,” wrote Bentley, “can only be what the mass of the people actually does and tends to some extent to make other people do by means of governmental agencies” Courts are obvious governmental agencies, but their activity, Bentley maintained, can be explained only in relation to all other connected activity—i.e., the group struggle—and not in terms of logic, ideas, or theories propounded by judges in their official opinions.

The implications of Bentley’s conception of law were enormous, for it expanded the universe of phenomena relevant to public law to include the activity of criminals, policemen, prosecutors, lawyers, trial and appellate judges, law clerks, and anyone else whose actions are connected with the legal-governmental process. For its time, Bentley’s work was an important contribution. It was a kind of sociological jurisprudence, but it differed from Pound’s ideas in that area and was more advanced than Ehrlich’s work. Thus, it is almost incredible that Bentley’s work was ignored for more than two generations.

 The Behavioural Approach.

The behavioural approach seeks to explain legal phenomena in terms of operationally defined concepts and empirically verifiable hypotheses concerning human behaviour. Focusing on the behaviour of individuals in legal processes, it draws heavily on individual and social psychology. The approach involves prediction, usually understood in terms of probability; i.e., if phenomena X, Y, and Z are observed in some postulated relationship, then the probability is that R’, not R“, will occur . In order to confirm hypotheses underlying such a statement and to determine probability, quantitative methods are often used, but quantification per se does not characterize the behavioral approach.

Political and legal realism (e.g., Haines 1922; Frank 1930) were forerunners of behavioralism in public law, but the approach received greatest impetus in its early years from Charles E. Merriam. Critical of narrow legalism, he urged political scientists to use psychology, psychopathology, sociology, and statistics in their research.

The behavioural approach seeks to explain legal phenomena in terms of operationally defined concepts and empirically verifiable hypotheses concerning human behaviour. Focusing on the behaviour of individuals in legal processes, it draws heavily on individual and social psychology. The approach involves prediction, usually understood in terms of probability; i.e., if phenomena X, Y, and Z are observed in some postulated relationship, then the probability is that R’, not R“, will occur In order to confirm hypotheses underlying such a statement and to determine probability, quantitative methods are often used, but quantification per se does not characterise the behavioural approach.

Political and legal realism (e.g., Haines 1922; Frank 1930) were forerunners of behaviourism in public law, but the approach received greatest impetus in its early years from Charles E. Merriam. Critical of narrow legalism, he urged political scientists to use psychology, psychopathology, sociology, and statistics in their research .

The contemporary legal systems of the world are generally based on one of four basic systems: civil law, common law, statutory law, religious law or combinations of these. However, the legal system of each country is shaped by its unique history and so incorporates individual variations.

CONCLUSION

Generally, Comparative public law compares, contrasts, identifies what is and what needs to be in legal systems by comparing them together to affect the world locally and globally.

BIBLIOGRAPHY

TEXTBOOKS.

 Administrative law by Takwani

 Comparative Constitutional law

 Constitutional law of India textbook by Narender Kumar

 Indian Penal code by Prof. S.N . Misra.

WEBSITES.

 http://www.slideshare.net/subrataa/history-of-comparative-law

 Online wikipedia 

 www.wikipedia.com

 http://www.ejiltalk.org/comparative-public-law-methodology-in-international-investment-law/

 https://comparelex.org/2014/03/31/the-scope-of-comparative-law/

 http://es.globallawpress.org/wp-content/uploads/Boughey-Administrative-Law-Next-Frontier-of-Comparative-Law.pdf

 http://www.law.utoronto.ca/utfl_file/count/users/mdubber/Comparative%20Criminal%20Law%20(OUP%20Handbook).pdf

 http://www.encyclopedia.com/social-sciences-and-law/law/law/public-law

CASELAWS.

 Kharak Singh v. State of UP. AIR 1963 SC 1295

  Maneka Gandhi v Union of India AIR 1978 SC 598

  Sunil Batra v. Delhi Administration AIR 1978 SC 1657

  M.C Mehta v. UOI.

  AIR 1954 SC 119.

  Sir Fredick Pollock, Law Journal Newspaper, pg. 49, Vol CLXXX.