COMPARATIVE PUBLIC LAW OVERVIEW

COMPARATIVE LAW- MEANING AND DEVELOPMENT
Comparison is a logical and inductive method of reasoning which helps an individual to objectively identify the merits and demerits of any norm, practice, system, procedure or institution, as compared to that of others or their own. People indulge in comparisons in day-to-day transactions as well, while purchasing goods or services, investing, learning, choosing an appropriate leader for themselves or in their personal lives.
Comparative study becomes a tool that assists an individual in arriving at a decision. It is often used in various disciplines, both in natural and social sciences.
With reference to the field of law, comparative analysis involves an evaluation of human experiences occurring in the legal regimes of different jurisdictions in different situations. The comparative study of laws of different states is termed comparative law. It is not a legal text or body of rules, rather more of a method.
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Montesquieu in his book De l’esprit des lois[2] adopted a comparative approach by analyzing the punishments specified under the penal laws in France and Engalnd. Therefore, he is often known as the ‘Father of comparative law’. Further, Professor Bernard Schwartz is considered one of the first in the common law countries to realize the growing importance of comparative law in the modern world[3].
In modern times, globalization and liberalization led to a boom in the trade relations of different states. This led to the creation of interconnectivity between different sectors of various nations. This made comparative law indispensable. Taking note of the necessity of comparative law, the First International Congress of Comparative Law was held in Paris in 1990, which acknowledged and analyzed the comparative method of the law.
With specific reference to India, comparative law was used as early as in the pre-independence era when the Law Commission of India deliberated on different models and policies relating to criminal liability in common law and civil law, in addition to the existing indigenous law of different parts of India, during the formulation of the Indian Penal Code[4].
COMPARATIVE PUBLIC LAW- MEANING AND DEVELOPMENT
Taking into consideration the meaning and implications of public law and comparative law, comparative public law can be defined as a comparative study or analysis of the laws of different countries which govern the state and its relationship with its subjects. Therefore, it encompasses the comparative study of constitutional as well as administrative law of different jurisdictions.
Comparative public law has played a key role in the drafting of constitutions of new democracies like India. According to Upendra Baxi,
“constitution makers everywhere remain concerned with the best constitutional design, however, that ‘best’ consists in ‘shopping’ around available models and adapting to their needs and aspirations. The eventual mix, is constrained by history interlaced with future-looking aspirations for social transformation.”[5]
The role of comparative public law is very evident in the Indian Constitution. During the drafting of the Indian Constitution, the discussion on preamble[6], fundamental rights[7], directive principles of state policy[8], parliamentary form of government[9], federalism[10], judicial review,[11] amendments,[12] equality before law[13], equal protection of law[14] etc. were primarily adopted after a comparative analysis of the constitutional laws in the United States of America, United Kingdom, Canada, Ireland, Australia and others.
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The role of comparative public law does not stop after the Constitution has been drafted. Subsequent constitutional developments take place through judicial decisions and academic research based on the use of foreign precedents and comparative constitutional literature. In a number of landmark judgments of the Supreme Court of India, relating to equality, expressional freedom, business, property right, right to life and personal liberty, death penalty, right to privacy, religious freedom and minority rights, one can find reference to foreign judgments in the course of interpretation of constitution and laws.[15]
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