Ever since UGC has introduced one year LL.M Program in the year 2013-14, three compulsory subjects are mandated to be taught to the students in the first semester of their Masters in Law. Comparative Public Law is one of those three subjects, perhaps the most critical one which as a subject, for various reasons, draws not only a considerable amount of attention of the experts across the globe but it has also invited animated debate as to whether or not it can be called an independent discipline. Advocates of comparative studies, scholars, researchers are often divided in their opinions on the issue at hand. Most of the law lexicons are stoic and silent in their explanations and connotations. However, it can be construed that finding a specific concise definition of comparative law is exceedingly complex and mind boggling but it can be understood if one goes to comprehend its utility, classification, historical back groud, scope, purposes and various challenges. This article attempts to simplify it as much as in a manner in order to make the readers understand it in full measure without much complexity.
2. PUBLIC LAW
Before attempting to define CPL, let’s try and understand very briefly what this public is all about. Constitutional law, administrative law, criminal law, taxation law, procedural law, labour law, trade law etc. that cover administration and governance, constitution, taxation and criminal acts fall in the category of public law. These laws control the actions between the citizens of the state and the state itself. Public law invariably deals with the governments’ operation and structure.
3. DEFINING COMPARATIVE PUBLIC LAW
As far as defining comparative public law is concerned, there is hardly any consensus. Some say comparative law is a systematic application of comparative technique, a discipline, a tool or a method. It is rather a comparative approach to study laws and legal institutions of two or more countries, their constitutional frame works, administrative mechanisms and policy making formats & systems of governance. Therefore, Comparative Public Law (CPL) is interchangeably called Comparative Systems of Governance. Over and above, it is a technique of looking one’s own law through the mirror analogous laws of other countries.
An eminent comparative lawyer has said that the phrase comparative law is a strange one. He goes on to say that comparative law denotes a method of study and research and not a distinct branch or department of the law. However, legal definitions of CPL are not only unsatisfactory but they lead to more controversies not conducive to results. To understand its meaning & definition more succinctly I quote the following:
According to Holland, “Comparative law collects, 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 been variously realized in actual systems.”
Salmond defines “Comparative jurisprudence as the study of the resemblances and differences between different legal systems.”
Prof Gutteridge defines, "Comparative law is an unfortunate but Generally Accepted label for the comparative method of legal study and research which has come to be recognized as the best means of promoting community of thought and interest between the lawyers of different nations and as an invaluable auxiliary to the development and Reform of our own and other system of law”
The Vocabularie Juridique defines -Comparative law as a branch of Legal Science whose object is to bring about systematically the establishment of closer relations between the legal Institutions of the different countries.
4. THE HISTORICAL BACKGROUND
The ruler is expected to take care of his subjects, and safeguards the composite elements of public order: religion, security, and recreation. The plan of the city is its constitution. Physical structure and the structure of rules combine under a single master plan, appropriate for the community living together in the public space carved out pursuant to the governing plan. In fact, in Ancient Greece, when a new colony was established, the urban plan went hand in hand with the constitution: both followed the master plan of the mother-city (the metropolis).
4.1 The Concept of Ideal City State-Plato & Aristotle
The physical and political plans of the city were intended to correspond to some (divine) truth or ideal harmony. The plan of the ideal city mirrors that of the ideal metropolis. Cities are not exactly alike, but all conform to a recognizable type. Do not constitutions similarly attempt to emulate the ideal constitution of the ideal metropolis of their time? Cannot comparative constitutionalism be enlisted in the quest to live up to an elusive measure or standard? The conception of an ideal government can be useful for purposes of comparison with actual governments. Plato's ideal, however, was so unachievable that it did not invite comparison to contemporaneous actual Greek states.
Aristotle, on the other hand, was concerned with actual government, and thus meticulously compared abstract forms of government with actual, Real-existierende states in order to find out how best to approximate the relevant ideals. At its beginnings, the science of government concentrated on thorough and exacting comparison: it is quite likely that Aristotle undertook to compile a collection of the constitutions of 158 Greek city states for such reason (albeit that only his analysis of the Athenian Constitution survives). Significantly, it was on the basis of this comparative material that Aristotle developed his theory of government in his Politics. Notwithstanding the collapse of government and the vanishing of the corresponding political science in antiquity, and notwithstanding the subsequent prevalence of religion and custom in matters of government, the comparative tradition did reemerge with the advent of modern political thought.
4.2 Post Revolution Period in France & the USA
Notably, Machiavelli's precepts were based on observations grounded in contemporary and historical practices of government. Whereas normative considerations and even extended use of biblical interpretation were common in the formation of modern constitutionalism, the political science of the modern era would be unthinkable without continued reference to a rich anecdotal tradition of comparative work on government practices.
Montesquieu's empiricism in the Spirit of the Laws provides perhaps the most notorious example of historical comparison, continuing the tradition of using comparative materials to generate normative conclusions, in this case culminating in the establishment of the foundations of modern constitutionalism. Comparative constitutional inquiry became particularly relevant in the aftermath of the revolutions in the United States and France. The Founding Fathers and the French revolutionaries had to invent a new organization of the state and they could rely only to a limited extent on pre-existing structures. The empirical evidence offered by comparison was both a source of inspiration and of legitimation. In the Federalist Papers, references to foreign experiences are made for justificatory purposes. In France, the translation of a collection of US state constitutions became one of the most important intellectual sources of reformist and revolutionary political thought, and comparisons with the US and English arrangements were common in the debates of the National Constituent Assembly.
4.3 Liberal Constitutional Theory
In the liberal constitution-making process of the early nineteenth century, comparison with the various French constitutions was standard procedure and Latin American constitution-making often relied on a consideration and comparative analysis of the US constitution. In liberal constitutional theory comparison, in some cases supporting developmental theories continued to be relevant, as was the case with J.S. Mill's Representative Government in matters of election law. Constant, Tocqueville, and Eötvös used constitutional comparison extensively, and Bryce developed a more systematic approach marked by his distinction between rigid and flexible constitutions. However, by and large, constitutional law became at this stage an independent though somewhat narrow subject, and increasingly its consolidation meant the abandonment of comparison. Characteristically, in Germany before the consolidation of the Empire and of its public law system, comparison was an important source of scholarly and reformist inspiration. In fact, the nineteenth-century German attempt to tame the administrative (police) state necessitated reliance on comparative public law, and the theoretical and practical elaboration of the constitutional theory of the Rechtsstaat was influenced by comparison and had a major impact in Europe through the translations of the concept. Hence, the interest in comparing administrative justice as a freedom enhancing control over the administration.
Even Dicey's Introduction to the Law of the Constitution ventured into comparative studies. Interestingly, Dicey's misunderstanding of the French system can be compared to the inspiring errors of Montesquieu regarding checks and balances in Britain, a century earlier. With the establishment of positive constitutional law in the nineteenth century, international comparison lost much of its appeal and legal science and public law practices became increasingly self-referential, as if the existence of a national constitution would have made foreign law irrelevant.
4.4 Comparative Interest & Curiosity to Change
Comparison of governments became a focus that was intended to satisfy intelligent curiosity, and partly to inspire change. Georg Jellinek, a leading exponent of legal positivism, developed a theory of the universalism of human rights relying on a comparative methodology. For his part, Adhémar Esmein, who also considered the state and its sovereignty a legal phenomenon, stressed the relevance of using some comparison in discussing French constitutional law. Even Duguit, whose scholarship was to a considerable extent directed against Esmein, continued to include comparative treatises in his work. Édouard Lambert, instituted a civil law-based comparative law in France and the first French comparative law institute in 1921. Moreover, Lambert's description of the US jurisprudence pertaining to labor may be considered a precursor of the treatment of foreign constitutional law as an element comparative law. In short, whereas legal positivism may not have been particularly favorable to the comparative approach, the latter served the practical needs of public law reform and constitution-making.
In spite of the existence of a comparative interest in academic constitutional law (exemplified by the first international conference in 1900 and by the establishment of the ‘Société de legislation comparée’ in Paris in 1869), modern comparative law (as a semi-autonomous discipline) originated in the efforts of private law experts. This might be related to international commercial interests and also to the desire to export national civil law codes. Such ‘imperialism’ was certainly present in the promotion of the German Civil Code. The theories of comparative law reflected considerations and concepts of private law, and constitutional law was often neglected in the comparative study of great legal systems. The low profile of constitutional law in comparative law may be due to the difficulties in finding universal elements in constitutional law. Nevertheless, already in the period between the two world wars, comparative constitutional law became established as a separate scholarly discipline.
4.5 Comparative Public Law & Foreign Systems
Comparative constitutional law scholarship did not emerge as an academic discipline until after the Second World War. In post-Second World War Europe comparative constitutional law was influenced by the East/West divide. Foreign constitutional systems were often studied as part of Soviet legal studies, and, respectively studies on Western bourgeois state law. Comparative law was understood as the study of foreign systems, with a heavy ideological accent. If constitutional law begins to ask what people actually do under a particular constitution, and not merely what battle of words they engage in for the settlement of conflicts among them, the constitutional lawyer becomes The shift towards a value-based approach is certainly rooted in the coming to power of totalitarian regimes. It resulted from the discontent with positivism in political science and law as the latter had proved intellectually impotent against totalitarianism. While not explicit, this normative commitment to constitutionalism remains influential in comparative constitutional law, even if this results in the neglect of the study of non-liberal regimes.
The interest in comparison motivated by the shift to a value-based approach continued to sustain a comparative interest after the Second World War, as part of Cold War thinking, as liberal democracies defended their system in opposition to communist totalitarianism. The post-war period was characterized by an international human rights revolution, with various waves of state formation and democratization, coupled with increasing judicialization of constitutional law. Such comparative interest drew further inspiration from the enhanced protection of fundamental rights that issued from the US Supreme Court starting at the beginning of the 1940s.The English reader will be interested to find that some of the problems which are now being considered in the United States are also of immediate importance in Great Britain. The first is concerned with the maintenance of our civil liberties at a time of ‘cold war’.
4.6 Comparative Studies as Academic Discipline
It is particularly noteworthy that in the transition from comparative government studies to comparative constitutional law as an academic discipline within the ambit of legal scholarship the interest in the subject matter proved to be primarily ideological. Indeed, a principal intent was to boost liberal constitutionalism against totalitarianism, and the elaboration of this new field was more the result of dissatisfaction with the prevailing positivistic method in law and government scholarship than an attempt to carve out a discipline or sub-discipline within jurisprudence. Comparison was intended to highlight theoretical trends and the object of the comparison became primarily government practice as the source and consequence of public law. The above phenomena occurred in an international context where the level of state interaction and interdependence contributed to the spreading of more intense and new forms of constitutionalism. These trends created new needs both within law and in government, and these related in particular to constitution-writing as a matter of borrowing and international cooperation.
However, according to Mark Tushnet, it was only the transition to democracy beginning in 1989 that has created the field of comparative constitutional law, resulting from the practical needs of constitution-drafting and institution-building, which produced a critical mass of knowledge and experts. Furthermore, the preservation of comparative constitutional law as a separate discipline with full-fledged practical relevance requires constitutional adjudication oriented toward comparison. In this respect, the role of international courts, and suggested or mandated comparison as is the case in the Constitution of South Africa which recognizes foreign constitutional law as a legitimate source of constitutional decision-making, play a crucial role.
4.6.The Use of Comparative Method
Comparative constitutional law was often part of the very movement towards the juridicization of constitutional law, as in the case of France where the importance of constitutional adjudication was recognized through comparative studies, in particular thanks to the activities of Louis Favoreu and his collaborators. The increased interest in case law resulted in a new emphasis on rights, while earlier scholarship was more concerned with structural issues of governance. The use of comparative method was well established in the German legal sphere but it has remained somewhat secondary in the prevailing theoretical study of the state which was not constitution-centered. Systemic specialized textbooks are still rare and relatively recent. The recognition of the practical importance of the comparative method is, once again, intimately related to the increased importance of comparison in constitutional adjudication. For German legal science this means a partial paradigm change in legal methodology: comparison is understood as a new (fifth) method of legal interpretation. While comparison became to varying degrees integrated into domestic constitutional law (in many countries, for the simple reason that their constitutional system became part of a supranational system with its own supranational constitutional law) and therefore it is inherently related to national constitutional law studies, it became an academic discipline in its own right, reflecting not only upon commonalities and differences in national systems, but it is also a reflection upon the interaction of national and supranational constitutional institutions.
5. USES OF COMPARATIVE PUBLIC LAW
One can discern four principal uses of comparative constitutional law. Two of these, uses of foreign constitutional materials in constitution-making—broadly understood as encompassing constitutional revision or amendment—and in constitutional interpretation are in the hands of actors or participants in the constitutional arena. The other two uses, providing descriptive accountings and elaborating normative assessments of participant dealings with comparative constitutional materials, in contrast, are primarily reserved for those who assume the role of observers, namely scholars in law and in other relevant disciplines. Examples abound of actual uses of constitutional materials originating in a jurisdiction other than that in which the actual users of such materials carry out official functions in relation to their own constitution. Thus, for example, various constitutions, including the Canadian Charter of Rights and Freedoms (Constitution Act of 1982, Pt I),
have influenced constitution-making in South Africa, New Zealand, and Hong Kong and the Basic Law in Israel. Similarly, such uses have also occurred in constitutional interpretation, and are even sometimes explicitly endorsed by constitutions themselves, as in the South African Constitution, which, as noted above, specifically empowers courts to consider foreign law when interpreting the Bill of Rights. These uses, moreover, have spread to transnational settings, where their constitution-making and their constitutional interpretation dimensions have, on occasion, been combined. A prime instance of this occurred when the European Court of Justice (ECJ), the EU's highest judicial body, began filling constitutional gaps at a time when the governing treaties of the transnational unit that is now the EU lacked any fundamental rights-related provisions. In its landmark 1974 Nold decision, the ECJ stated that in order to safeguard fundamental rights in the context of EU-imposed regulation, it had to start from the common constitutional traditions of the member states. Accordingly, the ECJ ‘cannot … allow measures which are incompatible with fundamental rights recognized and guaranteed by the constitutions of those States’. What Nold launches is both a piecemeal ECJ-driven constitution-making project relating to fundamental rights and an interpretive agenda depending on constitutional sources extrinsic to the EU (or its treaty-based predecessors).
In order for constitution-makers and interpreters to make cogent and optimal use of foreign constitutional materials that they either must, or wish to, consider, it is necessary for the latter to gain familiarity with them and to become able to gauge what usefulness any particular foreign referent may have in a given concrete decision-making instance. This is likely to require both an understanding of how a foreign constitutional norm figures in its own institutional setting and how it compares to seemingly similar norms in one's own and other pertinent constitutional systems. Constitution-makers and judges do make use of institutional models, structures, processes, arguments, and doctrines coming from beyond their own jurisdiction, and they need sufficient familiarity with those materials to justify such use to themselves and to the audiences to which they must remain responsive. Moreover, judges can sharpen their relative knowledge and appreciation of foreign materials through dialogues with constitutional judges from various countries, and through reference to relevant examination, analysis, and comparative assessment of the said materials in the works of comparative constitutional law scholars. The latter scholars approach the relevant material as observers, and they tackle it from either a descriptive or a prescriptive perspective. From a descriptive standpoint, the scholar examines systematically the comparative constitutional work that participants undertake, performing a number of tasks ranging from classification to critical assessment. For example, a scholar may distinguish between areas or subjects in relation to which much comparison occurs and those that give rise to minimal comparison. Or a scholar may be critical of existing comparisons in a particular area, let us say free speech, upon concluding that constitutional judges base comparisons on superficial similarities while ignoring less apparent but much more important differences.
Normative or prescriptive scholarly work, on the other hand, concentrates on what the scholar deems desirable or feasible, depending on the latter's empirical, ideological, or discipline-based position. One may be convinced, for instance, that constitutions are deeply anchored in a particular tradition and that use of foreign material is therefore bound to betray the imperative to maintain the uniqueness of every constitutional system. Or, one may be persuaded that fundamental rights are ultimately universal and that countries with less developed constitutional jurisprudence should always seek to benefit from the experiences of their counterparts with far more developed such jurisprudence.
The key concern in comparative law as it emerged in the civil law tradition in the late nineteenth and early twentieth century was to find the fonds commun législatif. This was the position of Capitant and Lambert in France, and it fostered the training of foreign lawyers in the national tradition in the name of comparative law. There is an analogous trend in comparative constitutional law emerging from the works of those who posit its principal goal as distilling what is universal or common in all constitutional systems and traditions. Accordingly, comparative constitutional analysis is sometimes animated by a search for the universal on the basis of what can be empirically observed or of conformity to the ideal (liberal, constitutionalist) arrangement through adaptation of manifold particular settings in varying cultural and historical circumstances. This search for the universal goes back to the early comparative law tradition exemplified by Anselm Feuerbach, the early nineteenth century German scholar who is credited with founding the discipline of comparative criminal law. Also important was the influence of comparative linguistics, pursued by the liberal constitutionalist Wilhelm von Humboldt, which was aimed at generating a universal sense of language based on comparative language studies.
This focus on universals is especially salient in comparative constitutional law endeavors to compare national solutions in terms of constitutionalism's search for a political ideal of ordered liberty. Moreover, the strong emphasis on the universality of human rights and the use of comparison in human rights adjudication which are intended to find a measure or standard of universally applicable norms point in the same direction. Some argue, for example, that there is a generally accepted virtually universal method of justification when it comes to circumscribing the scope of fundamental rights: that provided by the standard of proportionality, though judges and scholars differ in their conceptions of this ubiquitous standard. In this context, the study of the constitution of illiberal democracies centers on the reasons for departure from the ideal model, and focuses on the extent to which non-liberal constitutional systems can sustain a well-functioning legal order. Significantly, the influence of the constitution on the legal system in liberal democracies goes well beyond formal institutional settings and definition of legal sources: constitutional values become embedded in the various branches of law and even in private relations. There is a lack of consensus concerning the proper goals of comparative analysis that is due to broader ideological disagreements about the nature and function of law in general, and of constitutional law in particular.
Specifically, some argue that basic principles of constitutional law are essentially the same throughout the world. Accordingly, the principal goals of comparative analysis are to identify and highlight the common or universal principles and to determine how particular constitutional jurisprudences do, or may be made to, conform to those principles. At the other end of the spectrum, are those who maintain that all legal problems are so tied to a society's particular history and culture that what is relevant in one constitutional context cannot be relevant, or at least similarly relevant, in another. This position is encapsulated in Montesquieu's observation that ‘the political and civil laws of each nation … should be so appropriate to the people for whom they are made that it is very unlikely that the laws of one nation can suit another’. If that were indeed the case, then the only legitimate task for comparative analysis would be to explain how each constitutional system conforms to the singular needs, aspirations, and mores of the particular polity for which it has been designed. Consequently, besides fostering a systematic understanding of how law varies according to the particulars of its socio-political environment, the principal goal of comparison—at least as far as participants are concerned—would be a negative one. Because no two polities are likely to share essentially similar circumstances, there ought to be a strong presumption against use or adaptation of constitutional norms originated beyond one's borders. Between the two positions described above, there are various other ones. Some believe that the problems confronted by different societies are essentially the same, but that the solutions are likely to be different, owing to varying circumstances that distinguish one society from the next. Hence, the principal benefit of comparative work would stem from its ability to highlight specificities that tend to be taken for granted, and to enhance the knowledge and understanding of one's own system. For yet others, the function of comparative analysis is the development of an even more critical, reflexive analytical capacity. Critical theorists have argued that comparative constitutional law has a colonizing and hegemonic edge, as it tends to project the gloss of a dominant constitutional culture, such as that of the United States or Germany, onto constitutional systems operating in former colonies and other developing polities. Accordingly, both comparators, practitioners and observers work wittingly or unwittingly towards co-opting constitutional development in the latter settings. Consistent with this, moreover, the proper goal for comparative analysis would be the ‘debunking’ of the hegemonic tendencies spread throughout the discipline. This raises the question of whether the ideological biases attributed by certain critical scholars to comparative constitutional law stand out on their own or whether they are in the end no different than similar biases claimed to be operating in purely domestic fields of public and private law.
Some claim that comparative analysis in general, and comparative constitutional analysis law. Richard Posner asserts that for linguistic reasons alone many foreign legal systems are difficult to access. Added to that, in Posner's view, domestic judges and scholars cannot easily attain a sufficient familiarity with foreign legal systems and with the social, cultural, and institutional systems in which the latter are embedded to warrant any confidence in the accuracy or utility of actual comparisons. Furthermore, for those with universalistic tendencies, comparative constitutional law should aim at harmonization and convergence, and search for application of common or functionally equivalent concepts and institutions. Consistent with this, the hope is to achieve common and shared solutions, contributing perhaps to some kind of democratic world order of Kantian world citizens.
Writing from a comparative law perspective, Pierre Legrand has cast a particularly stringent criticism on such ambitions: rules and concepts alone actually tell one very little about a given legal system. … They may provide one with much information about what is apparently happening, but they indicate nothing about the deep structures of legal systems. Specifically, rules and concepts do little to disclose that legal systems are but the surface manifestation of legal cultures and, indeed, of culture tout court. In other words, they limit the observer to a ‘thin description’ and foreclose the possibility of the ‘thick description’ that the analyst ought to regard as desirable. Accordingly, all comparison involves translation, and the current trend to internationalization of constitutional law and to stressing analogies and convergences vastly increases the likelihood of ‘getting lost in translation’. Another kind of challenge stems from instances in which domestic courts place an implausible interpretive gloss on foreign authorities, apparently for strategic purposes. This may occur in the course of constitutional adjudication in relatively new constitutional democracies, when courts seek to shield controversial and contestable decisions through reference to the constitutional jurisprudence of an established and respected constitutional democracy. For example, several decades ago, the Israeli Supreme Court made reference to American free speech doctrine to justify decisions inconsistent with those of US courts in similar cases. As presumably strategic citation of precedents and authorities also occurs in purely domestic settings—both by advocates and by judges endeavoring to emphasize the soundness of their decisions—a key question is whether the challenge posed by strategic uses of legal authorities is markedly greater in the comparative context as opposed to that of its purely domestic counterpart. One possible answer is suggested by reference to the claim that citation of foreign authorities should be avoided because it is inevitably selective. That is the reason Justice Scalia reproached the US Supreme Court's majority opinion reference to European jurisprudence in Lawrence v Texas, the case in which the Court held as unconstitutional the criminalization of homosexual sex among consenting adults. Justice Scalia complained that citation of European jurisprudence was selective and thus misleading as in other parts of the world, such as jurisdictions in Asia and South America, the criminalization at issue was deemed constitutional. But by citing these latter jurisdictions, Scalia appears to undermine his assertion that selective citation poses a threat. Actually, familiarity with foreign material allows both promotion and neutralization of selective citations. Arguably, the same can be said for strategic citation.
Inspite of diverse views of the experts and comparative advocates, though some of them are bit discouraging, Comparative law has not only arrived, but has undoubtedly come to stay. The atmosphere of suspicion and indifference in which t it was formerly shrouded has been dissipated to a considerable extent though perhaps, not entirely. In any event, comparative law has established its claim to be recognised as a branch of legal technique and as an integral factor and a living influence in the study and development of law, and this is no mean achievement for a branch of learning which has yet to celebrate the century of its birth. A comparative lawyer is, however, in no way called upon to apologise for his subject or to defend it. The tragic events of the last half-century have emphasised the need for more effective collaboration in the international sphere and for a pooling of the resources of the world for the benefit of mankind in general, not merely as regards material things, but also in the domain of science and learning. As Lord Macmillan has said : 'Nations have to live together, and the best method of overcoming distrust and want of confidence and of breaking down walls and barriers lies in the promotion of means of sharing our intellectual interests with other nations.” If this were done many political and economic differences would tend to disappear in an atmosphere of friendliness and trust.
- Gutteridge, Comparative Law-An Introduction to the Comparative Method of Legal Study & Research, Universal publication
- M.P Singh, Comparative Constitutional Law, Second edition, Eastern Book Company
- Mauro Bussani & Ugo Mattei, The Cambridge Companion to Comparative Law, Cambridge
- Michel Rosenfeld & Andras Sajo, The Oxford Hand Book of Comparative Constitutional Law, Oxford Publication
Dr SK Bose is currently working as Associate Professor at Faculty of Law & Director, Centre for Legislative Studies & Research, Manav Rachna University
Tags :constitutional law