Vaibhav Chaurasia

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2. What are the implications of what you learnt in this course for (i) your
understanding of applied comparative law, (ii) your assessment of your own
professional and personal development in relation to this field, (iii) the scope for
enlarging and applying this kind of knowledge to the teaching at leading Indian
law schools, and (iv) the potential for interventions in future Indian legal
developments?

It is difficult to understand the universe if you only study one planet.

-Miyamoto Musashi,
A book of Five Rings(1645)

Applied Comparative Law

Comparative law is in its applied version has been understood as one which suggests how a
specific problem can most appropriately be solved under the given social and economic
circumstances1. Further, many scholars have understood it in the terms of empirical research
methods when applied to the comparative law with aim to improve design and legal
institutions.2 Applied comparative law is that field of comparative law, which probes more
deeply into the matter with a definite purpose in view, it is not too much desperate for
gathering information but it is more directed towards finding solution to the problems.3 The
applied comparative law seems to be the functional approach of comparative law with specific
purpose at the hindsight. However one need to be cautious, as there are no generally accepted
theoretical frames, established terminologies or aims set in comparative law.

Assessment

Comparative law trains in methods4, paradigms5 and schemes of intelligibility6. It involves

macro 7 as well as micro 8 comparison. Such academic exercise leads to the knowledge

1 Konrad Zweigert &Heinkotz, Introduction To Comparative Law, (Tony Weir Trans., 3d Rev. Ed. 1998), Oxford
University Press, 11.
2 See Generally T.M. Cooley J. Prac. & Clinical L. 97 2005-2006 ; David S. Clark, Applied Comparative Law:

Researching Foreign Law In An Imperfect World, 30 Int'lj.Legalinfo. 232 (2002)

3 H.C Gutteridge, The Province Of Comparative Law, In Comparative Law(1949) , 9
4 Such as induction, deduction, analogy, differential, genealogical etc.
5 involves the debate as to holistic v. individualist, order v. chaos, nature v. culture etc.
6 Concept and terminology first used by French Thinker Michel Foucault. As far as comparative law is concerned,

the categories of scheme of intelligibility invoves causal, structural, functional, hermeneutical, actional and
dialectical.
7 It mainly refers to the comparison of entire legal system. In present course, such as drawing comparison

between French law and English Law.

8 Where comparison of specific are of law is concerned, such as causa in French Law with consideration in

English law.
generation by way of dialectics9 between domestic law and foreign law. The functional10
approach much dear to the subject fails to indicate how a legal structure is put together in
terms of its structure and classification.11The subject not only provides for the methodology
but introduces to its second fundamental which is object of comparison i.e. law. Moreover the
subject has taught not only mechanical application of laws but also taking into consideration
the legal culture12. It is true that law divorced from its cultural matrix is meaningless.13

The subject has acquainted with the value of classification, systematization and interpretation.
In the quest for drawing out similarity and difference, the comparison serves as tool to think
out of box. The Universalist enterprise, which comparative law has been sometimes rightly
accused, is dogmatic, however it apt to recall H. E. Yntema, “Legal science does not admit
chauvinist isolation”14 . The present comparative law indeed involves the question of rejection
of Eurocentricism or pushing away from he implicit thought pattern that normal solution are
always superior, or one may say, at least they are normal. Thus comparative law is a boon and
most efficient way to get rid of “national mental straitjacket” that restrict the acquisition of
legal knowledge in broad sense.

Scope For Enlargement and Application

The present course framework combined with the tools and techniques aforementioned is
instrumental in breaking Colonial Hegemonic Anglo-Saxon Jurisprudence. However the
colonialist structure (tracing historically) seems to play significant place in legal testimony but
the writing of Prof. M.P. Singh15 and Prof. Werner Menski has worked wonders in coming out
of the shackles of colonial way of reasoning. The French and German Legal system offers
counter-narrative to Anglo- Saxons Jurisprudence.16Prof. Menski gigantic work17 shows very
well the unsuitability of English Legal Jurisprudence and shows skillfully the relevance of
legal pluralism after establishing the novel kite model.18

The wisdom drawn from such work not only garners confidence but also bear the testimony
that there are many right ways to do the same work. The present Indian Jurisprudence, by
way of comparative analysis, not only would help to know the ways of others but also to

9 One is bound to draw analogy with Marx, although he himself borrowed it from the Hegel, i.e. thesis +

antithesis = synthesis.
10 Which do not limit itself to the textual analysis of two jurisdictions but also to the effect that comes out of it.
11 This is generally referred to as structural approach.
12 Legal Culture is the question of factors that are outside the formal legal system but still closely relates to the

operation of legal system.

13 E. A. Hoebel , The Law Of Primitive Man: A Study In The Comparative Legal Dynamics, Harvard University

Press, 39.
14 H. E. Yntema, Comparative Law and Humanism, 1958 7 American Journal of Comparative Law, 498.
15 Relating to German Administrative Law
16 However earlier in the draft, the aim to do away with the Eurocentricism was appealed to. It is submitted that

such is not the approach in compelling manner to do away from any scheme of knowledge for the reason that it
has the remnants of Anglo-Saxon Jurisprudence or Eurocentricism, but only upon the sound reasoning they shall
be done away.
17 Werner Menski, Comparative Law in Global Context, Cambridge University Press, 2006.
18 The indepth analysis done by the Prof. of the legal system of Asia and Africa is not only impressive

comprehensive analysis but also inspiring, especially in third world context.

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appreciate that why something simply borrowed will not work here.19It is also a good way to
analyze how particular law is cultural specific, in context, within particular country. Such
comparative methodology is bound to increase the learning. After the introduction of Case-
Method in Law Colleges in 60s, the comparative method has same potential of increased
learning outcome and would prove to be revolutionary.

Potentials For Interventions

The scope for intervention in Indian academia and legal field is immense. Our constitution to
large extent is mixed bag of borrowing, with caveat, that it was modified to suit to our needs
and demands. With the passage of time, it may undergo same debate as to originalism v. living
constitution, which is all-pervasive in U.S. Constitution. Moreover we are still grappling with
the problem of independence of judiciary, delayed trials, separation of power and federalism
(especially in the wake of GST). It is submitted that other legal jurisprudence may offer
exemplary solution, subject to legal culture. It is also submitted that Indian subcontinent is
much of civil law country20, so much may be learnt from civil law countries. The Human Right
jurisprudence, Environment law and commercial laws provides for much convergence of
rules, standards and benchmark. Least to mention, the apex court do engage in applied
comparative techniques when it tries to fill the gaps which legislature has left inadvertently,
where borrowing from same kind or schema of legal family and culture affords legitimacy to
the reasoning of the judgment. To conclude, nothing captures the spirit of the subject more
than the quotation mentioned at the outset21, thus to understand the larger part, one needs to
compare the smaller parts that constitute it.

19 Probably the most dominant factor would be the legal culture.

20 However unfortunately common law may have arrived by way of colonial rule.
21 It is difficult to understand the universe if you only study one planet by Miyamoto Musashi, in his book “A

book of Five Rings” (1645).